A health worker was recently summoned to give evidence in a case of a sexual assault. The doctor swore an oath, as is usually done, that he was going to tell court the truth, the whole truth, nothing but the truth.
The doctor’s evidence was purportedly based on a medical examination he had carried out on the victim.
Judge smells a rat
However, the judge smelt a rat as the doctor gave his evidence. The judge, at the end of the doctor’s evidence-in-chief, asked the victim, who was present in court, whether she knew the person giving evidence.
The victim denied any knowledge of the doctor. The judge then turned to the doctor and asked him if he truly examined the victim.
As it turned out, it was the doctor’s assistant who had carried out the examination; the doctor only signed on the form. He had not even seen the victim.
What the doctor did was sacrilegious and an abomination in the temple of justice. It is almost beyond fathom that an expert witness has the guts to blatantly tell lies in court.
When a sexual offence is committed both the victim and the suspect are taken for medical examination. The role of the health practitioner is to carry out medical examination and report the findings on the police form (PF3A) provided for that purpose, not simply what one is told.
In sexual offences other evidence of sexual contact apart from vaginal penetration, should be recorded.
In cases of defilement, evidence of a sexual act other than penetration, should be looked for. The nature of injuries suffered is sometimes relevant in cases where lack of consent is an issue. The emotional state of the victim should also be examined and reported on.
Referral should be done and recorded where relevant. And the examination should be done with the time of offence in mind, to determine the relevance of the injuries to the facts.
Immediate examination of the victim and suspect to determine recent contact or sexual activity yields the best results, including matching injuries and identification of body fluids.
The age of the victim or accused must be determined scientifically and stated clearly. It is not right to say that a person is below or above a certain age. The time the offence took place is critical and must be determined to the best ability of the health practitioner, to establish consistency with other facts of the case.
The health practitioner should be able to comment on any relevant matters or findings which he or she feels could be of use to court, even where the police form does not seek such answers.
Important to note
Notes and remarks may be very useful to court and to the health practitioner at the time of giving evidence in court.
Whenever technical terms are used the health practitioner should try to explain them in simple English which police, prosecution and court understands. Health workers should endeavour to avoid use of legal terms such as defilement, rape, indecent assault but should give their conclusions basing on the medical findings.
Prosecutors must understand and appreciate the findings of the expert before using them in court. In case of need for further explanation, a health practitioner should be requested to make an additional police statement.
Examine the witness
The witness may be examined as to his or her expertise and knowledge and experience to satisfy court that the practitioner is indeed an expert.
Evidence of experts is opinion evidence, and an exception to the general rule that evidence of opinion is inadmissible in court.
The court decides what weight to attach to expert medical evidence. To be useful expert evidence must have a sound scientific basis for the opinion given, taking into account the expertise of the witness and circumstances of the case.
When conflicting expert evidence is given the court would look at the qualifications and experience of each expert and the reasons for their opinions, in determining which findings to use.
And where attendance of the medical practitioner who did the medical examination cannot be procured his or her evidence can be tendered through another witness who knows the practitioner’s signature and can explain the findings.