Legal Nuggets (84): The Position Of The Law Where The Prosecution Intends To Establish Cause Of Death By Relying On A Medical Report In A Criminal Trial.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI

FULANI M. vs. THE STATE (2018)LPELR-45195(SC)

ISSUE: MEDICAL EVIDENCE-The position of the law where the prosecution intends to establish cause of death by relying on a medical report in a criminal trial

PRINCIPLE:
"The issue raised here by learned counsel for the Appellant was adequately considered by the lower Court. The lower Court at pages 195-196 of the record of this appeal said:-
"It is not mandatory that a medical report should only be tendered by the medical officer who prepared it unless the accused disagreed with the contents of the report or it is desirable to call the medical officer in the interest of justice."
The lower Court made reference to Section 249 (3)(a)(b) and (c) of the Criminal Procedure Code and Section 55 (1)(2) and (3) and Section 83 (1)(a) and (b) of the Evidence Act and concluded as follows:-
"These sections require that once a medical report is admitted in evidence, the report shall be read over to the accused who shall be asked whether he disagrees with any statement therein. Any such disagreement shall be recorded. If there is any such disagreement or if the Court suo motu considers that it is desirable to meet the ends of justice that such medical officer attends Court to give oral evidence, the Court is enjoined to summon the medical officer to appear as a witness."
I totally agree with the lower Court on this point. Section 249 (3)(a)(b) and (c) of the Criminal Procedure Code provides as follows:-
"249 (3)(a) A written report by any medical officer or registered medical practitioner may at the discretion of the Court be admitted in evidence for the purpose of proving the nature of any injuries received by and the physical cause of the death of any person who has been examined by him.
(b) On the admission of such report, the same shall be read over to the accused and he shall be asked whether he disagrees with any statement therein and any such disagreement shall be recorded by the Court.
(c) If by any reason of any such disagreement or otherwise it appears desirable for the ends of justice that such medial officer or registered medical practitioner shall attend and give evidence in person the Court shall summon such medical practitioner to appear as a witness."
Although Section 249 (3)(b) provides that the written medical report shall be read to the accused after its admission in evidence and he shall be asked whether he disagrees with any statement therein, where the accused person is represented by a counsel, the Court needs not ask the accused person if he agrees with any statement in the medical report. See A.G. Difa vs. The State (1977) NNLR 224. The contention of the learned Appellant's counsel is that Exhibit B, the medical report was not tendered through its maker, as such it is inadmissible. Learned counsel is clearly wrong in his submission. By the provision of Section 249 (3)(a)(b) and (c), a medical report is admissible even if it is not tendered through the maker. When the application to tender the medical report in evidence was made at the trial Court, learned counsel for the Appellant's objection was not based on the Court's failure to read Exhibit B to the appellant. The objection was that Exhibit B was not tendered through the maker. It is therefore my firm view that the lower Court is right to have held that Exhibit B was properly admitted and considered by the trial Court." Per GALINJE, JSC.(Pp.11-14,Paras.E-C).

PAUL vs. THE STATE(2019)
LPELR-47386(SC)

ISSUE: MEDICAL EVIDENCE-Whether a medical report is admissible even if not tendered through the maker

PRINCIPLE:
''In his evidence in chief, the Appellant denied fighting the wife. He testified that when he asked for food from the wife, they had a miss-understanding which resulted in a quarrel. The wife tried to hold him by the shirt; he stood up, removed the shirt and ran out. Later he heard her junior sister Kezia crying, and when he went in, he saw his wife lying on the ground and foaming from the mouth. Continuing with his testimony, Appellant stated that when he got into the house, he observed that the container of herbicide he kept in the house was empty. In considering the Appellant's testimony at the trial Court, the lower court held: - "The medical report in Exhibit AP2, stated suffocation, severe brain injury secondary to beating and certified the cause of death to be suffocation and severe traumatic injury. The medical report therefore conclusively rules out the herbicide theory or story, as propounded by the Appellant in his evidence in chief." Learned Counsel for the Appellant submitted that the lower Court was wrong to have relied on Exhibit "AP2" as it does not command any evidential value. First Learned Counsel submitted that the name of the doctor that prepared the Exhibit does not appear on its face. Secondly that the doctor that issued the report was not called as a witness so as to be cross examined with regard to his qualification, and that the Appellant was not given fair hearing because he was not given the right of cross examining the doctor. Section 249 (3) (a) (b) and(c) of the Criminal Procedure Code provides as follows: -
"249(3)(a) A written report by any medical officer or registered medical practitioner may at the discretion of the Court be admitted in evidence for the purpose of providing the nature of any injuries received by and the physical cause of the death of any person who has been examined by him. (b). On the admission of such report, the same shall be read over to the accused and he shall be asked whether he disagrees with any statement therein and any such disagreement shall be recorded by the Court. (c). If by any reason of any such disagreement or otherwise it appears desirable for the ends of justice that such medical officer or registered medical practitioner shall attend and give evidence in person, the Court shall summon such medical practitioner to appear as a witness."
Although Section 249 (3) (b) provides that the written medical report shall be read to the accused person after its admission in evidence and he shall be asked whether he disagrees with any statement therein, where the accused person is represented by a counsel, the Court needs not ask the accused if he agrees with any statement in the medical report. See A.G. Difa v. The State (1977) NNLR 224. The contention of the Learned Appellant's Counsel is that Exhibit AP2, the medical report was not tendered through its maker as such the Appellant, was denied the right to fair hearing as he was not allowed to cross examine the maker of the said exhibit. Learned Counsel is clearly wrong in his submission. By the provision of Section 249(3)(a) (b) and (c), a medical report is admissible even if it is not tendered through the maker. When the Application to tender Exhibit AP2 in evidence was made at the trial Court, Learned Counsel for the Appellant's objection was not based on the Court's failure to read Exhibit AP2 to the Appellant. The objection was that Exhibit AP2 was not tendered through its maker and that the said exhibit was not certified by a pathologist, entomologist, Accountant-General or Government Chemist as provided for under Section 42(1)(a) of the Evidence Act. The trial Court in a considered ruling overruled the objection. At the lower Court, the only challenge to the trial Court's ruling was that the maker of Exhibit AP2 was not called as a witness.
The lower Court rightly in my view held that the failure to procure the maker of Exhibit AP2 was explained and the trial Court was right when it admitted the said Exhibit in evidence. I agree with the lower Court, as I have explained elsewhere in this judgment that a medical report is admissible even if it is not tendered through its maker, provided that the reason for the absence of the maker is provided. The prosecutor had explained that the medical Doctor, Sunday Oduniyi who prepared the report was no longer in the service of Taraba State Government. I also agree with the lower Court, that the medical report which was rightly relied upon by the trial and lower Courts conclusively ruled out the herbicide story as propounded by the Appellant in his evidence in chief.'' Per GALINJE, JSC.(Pp.16-20,Paras.B-B)