095-NLR-NLR-V-39-PERKINS-v.-DEWADASAN.pdf
Perkins v. Dewadasan.
337
1938Present: De Kretser AJ.
PERKINS v. DEWADASAN.
813—P. C. Kurunegala, 53,499.
Medical Ordinance—Unregistered medical practitioner—Charge of practising-for gain—Burden of proof—Ordinance No. 26 of 1927, s. 41 (b).
Where a person is charged under section 41 (b) of the Medical Ordinancewith practising for gain, not being a registered medical practitioner,the burden of proving that he is a registered medical practitioner is onthe accused.
T
HE charge against the accused respondent was that he did "notbeing a medical practitioner practise for gain in that he did
give an injection to one C. D. Horatala and recover a sum of rupeesfour for same in breach of section 41 (b) of Ordinance No. 26 of 1927 ”.
The prosecution proved that the accused had a dispensary and thaton December 12, 1936, Horatala went to the dispensary suffering fromfever. An injection was given on the arm and a fee of four rupees wascharged by the accused. A Gazette of April, 1937, was also producedto prove that the accused’s name did not appear in the List of Regis-tered Medical Practitioners, but that his name appeared among thePharmacists.
At the close of 'the case for the prosecution the learned Magistratedischarged the accused without calling for a defence. From this orderthe complainant appealed with the sanction of the Attorney-General.
H. T. Gunasekera, C.C., for complainant, appellant.—Section 42and 43 of the Medical Ordinance, 1927, .relate to vedaralas and dispensers.Sections 2 and 37 of the same Ordinance defines a medical practitioner.The burden of proving that he is not a medical practitioner does notlie on the prosecution. The words “ not being a medical practitioner ”create an exception and hence section 105, of the Evidence Ordinanceapplies. Section 106 of the Evidence Ordinance deals with facts whichare especially within the knowledge of the accused. It is impracticableand impossible to prove the negative in this case (Rex v. Turner The Apothecaries Company v. Bentley*, Roche v. Wills*, and Williamsv. Russell4).
Even if the burden is on the prosecution the production of the Gazetteunder section 114 (e) and (f) of the Evidence Ordinance, is a sufficientdischarge of it.
N. Nadarajah (with him G. E. Chitty), for the accused, respondent.—A similar proposition came before the Court under section 80 (3) (b) of theMotor Car Ordinance, 1927 (Nair v. Saundias Appu *).
Section 33 of the Medical Ordinance, 1927, provides a mode of proof.The onus shifts on to the accused when a certified extract of the registeris produced. The prosecution must adduce prima facie evidence. That,the accused “ is not a medical practitioner ” is an element to be proved. 1
1 (is 16) 5 M. <* S. 206 ; 105 E. R. 1026.» (1934) 151 Z. T. 154.
* (1824) l.C.de P 538 ; 171 E. R. 978.* (1933) 149 Z. T. 190.
:4 (1936) 6 C. Z. W. 1.
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De KRETSER A.J.—Perlcins v. Dewadasaii.
The exceptions in the Penal Code deal with an entirely different positionwhere all the necessary elements for the offence are present. Thenthe exception must be proved as a defence.
[De Kretser A. J.—What is the purpose of section 32 ? ]
Publication under that section is merely to give information to thepublic.
[De Kbetser A.J.—Is there any provision for the rectification of theGazette ? ]
There is no provision, except that it must be published every year.There may be omissions sometimes.
If the Crown’s position is correct, then the Ordinance would havebeen worded differently (The King v. Attygalle *, Woolmington v. Directorof Public Prosecutions*). In this case the prosecution did not give anyassistance to the learned trial Judge when he pointed out the defect.
Cur. adv. vult.
February 9, 1938. De Kretser A.J.—
The charge against the respondent was that he did “ not' being amedical practitioner practise for gain in that he did give an injectionto one C. D. Horatala and recover a sum of rupees four for same in breachof section 41 (b) of Ordinance No. 26 of 1927.”
The prosecution led evidence after which Counsel for the defenceargued that no offence had been proved. The learned Magistratereserved his judgment and eventually acquitted the respondent holdingthat the prosecution had failed to prove that the respondent’s namewas not on the register.
The complainant appeals with the sanction of the Attorney-General.
At the hearing of the appeal it was urged for the appellant that theburden of proof was not on the appellant to prove a negative, viz.,that accused was not a registered medical practitioner, and, if it was'that the burden had been discharged.
For the respondent it was urged that it was for the complainant toprove- all the essentials set out in the charge, that the Ordinanceprovided the method of proof and this method had not been adopted.The case of Nair v. Saundias Appu* was relied upon.
That' case arose on the wording of another Ordinance and is onlyindirectly of assistance. We are here concerned with Ordinance No. 26of 1927, and niore particularly with the wording of section 41 of it.Learned Crown Counsel contends that the words “ not being a medicalpractitioner ” are an exception or proviso and that it is for the personcharged to prove that he comes within the exception ; it is a matterpeculiarly within his knowledge whether he is registered and it is almostimpossible for the prosecution to prove a negative. He also arguedthat section 33 did not exhaust all the modes, of proof available. Herelied upon certain English cases to which I shall refer later.
Section 33 provides a very convenient form of proof and why it wasnot followed has not been , explained. The prosecuting Inspectorcontented himself with producing a copy of the Gazette which contains.a copy of the register as it stood on January 1, 1937—vide section 32.
* (1936) 37 N. L. R. 337 at p. 338.1 (1933) 104 L. J. K. B. 433.
* 6 G.L. W. 1.
De KRETSER A.J.—Perkins v. Dewadasan.
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Nothing like the difficulty which exists in section SO of the MotorCar Ordinance, 1927, which was the Ordinance under consideration inNair v. Saundias Appu (supra) is to be found in section 41 of the MedicalOrdinance, 1927, which deals with a different class of persons, personsof a professional class.
What is the scheme of the Ordinance and what evil is it designed toprevent ? It provides for the registration of qualified medical menwho prove before the Registrar, an officer appointed under its provisions,their claim to be registered; it establishes a Council' empowered tosupervise and direct the Registrar and to order the erasure of the nameof any person from the register or otherwise deal with him.
Section 31 requires the Registrar to keep correctly the registersprovided by section 25 and not only to keep them correctly but up todate. Section 32 requires him to publish annually in the. Gazette a copyof each register. Section 33 provides for two modes of giving primafacie evidence of a register. Section 41 prohibits any person fromusing any title likely to give the impression that he was qualified topractise by modern scientific methods or implying that he was registered ;and it also prohibits any person from practising medicine or surgery,if he is not a medical practitioner, i.e., a registered medical practitioner.Exceptions are made in sections 42 and 43 for vedaralas, apothecaries,and estate dispensers.*
Now, does the section contain a general prohibition with an exceptionin favour of the registered medical practitioner and similar exceptionsin favour of vedaralas and apothecaries and estate dispensers ? Itseems to me that it does.
The Ordinance was -enacted, I should say, as much, in the interestsof the medical profession as of the public. An easy and effective methodof control was aimed at, and it must not be lost sight of that an educatedand professional class were concerned. Section 41 created two classesof offences. The first was the use of a misleading title and this wouldnot apply to vedaralas or apothecaries or estate dispensers since theirvery designations indicated what they were. The second offencecreated primarily was practising for gain, and here vedaralas, apothe-caries, and estate dispensers were affected and an exception was madein-their favour. The section in simple language means, as far as on thepresent case is concerned, that no one shall practise medicine or sur-gery for gain unless he is a registered medical practitioner or one of theother excepted classes.
If the respondent’s contention is correct it would be necessary for. theprosecution to prove not only that the appellant is not a registeredmedical practitioner but also that he is not a vedarala or one of thepersons referred to in section 43. Obviously that would be a stupendoustask and would render a conviction practically impossible. It isdifficult to believe that the Ordinance contemplated any such thing.Notwithstanding the form of the words used by the draftsman, whotried to compress too much into one section, there is a general prohibitionfollowed by exceptions and the ordinary rule prevails that a personclaiming the benefit of an exception must bring himself within theexception. The only argument to the contrary is that the Police may
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De KRETSER A.J.—Perkins v. Dewadasan.
abuse their powers and prosecute a reputable registered medicalpractitioner and it would be a hardship for him to have to establish hisinnocence. That argument applies to every case in which an offenceis created and exceptions provided, and one cannot legislate for theexceptional case of the Police abusing their powers. They would do soat their risk and in the face of a Gazette publishing a copy of the registerand of other means of information at their disposal.
The Ordinance contemplates publication in the Gazette as a means ofinformation, vide section 43 (3).»
Having considered the Ordinance let us come to the question of theburden of proof.
Section 101 of the Evidence Ordinance does not help very much,for it merely explains the term “ burden of proof ” and it states thatwhoever desires a Court to give judgment as to a legal right or liabilitydependent on the existence of facts which he asserts must prove thatthose facts (exist. It is the existence of facts which .constitutes theliability and not their non-existence. It must be remembered thatthe section applies to civil cases as well as to prosecutions, and thedefinition of “ proved ” given in the Ordinance must not be lost sight ofwhen dealing with the illustrations. A crime is not always the sameas an offence, and while a person who asserts that a person committeda crime must prdve it, what exactly he has to prove depends on thedefinition of the crime.
While section 101 explains what “ burden of proof ” means in generalterms the following sections define tests for ascertaining on whom the"burden lies.
Section 102 enables one to ascertain who has to begin and when theburden shifts.
Section 103 gives another test and that is, the burden of proof asto any particular fact lies on the person who wishes the Court tobelieve in its existence.
It is section 105 which applies most closely to the present case, forwhen section 41 defines the offence, there is a special exemption ofproviso regarding registered medical practitioners. There is no pro-vision in the Ordinance as to the burden of proof. Applying then theabove .provisions and guided by the English Law on which they arefounded we get these conclusions, viz., that a person is not called uponto prove a negative and that a person claiming the benefit of anyexception must prove that he comes within the exception so provided.
The form of the charge does not conclusively settle the question ofthe burden of proof for it may give the person accused notice of anumber of particulars and the prosecution may not be obliged to proveall of them, e.g., A may be charged with practising medicine for gain,and to understand the charge properly he may be told that he is chargedbecause he is not a registered practitioner. It does not follow thatthe prosecution is therefore obliged to prove a negative.
In The King v. Turner1 it was held that it was sufficient if theinformation and the adjudication negatived the qualifications, in the
1 105 English Reports 1026.
De KRETSER A.J.—Perkins v. Dewadasan.
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particular section then being considered, without negativing them in theevidence. Lord Ellenborough C.J. said—
“ The question is, upon whom the onus probandi lies; whetherit lies upon the person who affirms a qualification, to prove theaffirmative, or upon the informer, who denies any qualification, toprove the negative .. The argument really comes to this,
that there would be a moral impossibility of ever convicting uponsuch an information …. And does not, then, common senseshow the burden of proof ought to be cast on the person, who, byestablishing any one of the qualifications, will be well defended ?
. . . . I am, therefore, of opinion that this conviction, whichspecifies negatively in the information several qualifications mentionedin the statute, is sufficient without going on to negative, by the evidence,those qualifications.”
Bayley J. said —
“ I am of the same opinion. I have always understood it to be' ageneral rule, that if a negative averment be made by one party,which is peculiarly within the knowledge of the other, the partywithin whose knowledge it lies, and' who asserts the affirmative isto prove it, and not he who avers the negative . .. I cannot
help thinking, therefore that the onus must lie on. the defendant, andthat when the prosecutor has proved everything, which, but for the.defendant’s being qualified, would subject the defendant to thepenalty, he has done enough; and the proof of qualification is to comein as a matter of defence.”
Holroyd J. expressed his agreement in similar terms.
The Apothecaries Company v. Bentley1 was an action for a penaltyfor practising as an apothecary without having the certificate requiredby a certain statute and bears a close resemblance to the present case.
The counts in the declaration contained the allegation that thedefendant did act and practise as an apothecary &c., “ without havingobtained such certificate as by the said act is required ”. No evidencewas led by the plaintiffs to show that the defendant had not obtainedhis certificate. It was urged, as in the present case, that where anexception was created by a distinct clause, the burden of showing thathe was within it lay upon the defendant; but that where the exceptionwas introduced to qualify the penal clause in its very body, the negativechereof must be both stated and proved by the plaintiff. It was admittedby the plaintiffs that the exception ought to be negatived in the pleadingbut it was contended that the plaintiffs were not under an obligationto prove it. Abbott Ld. C.J. said—“ I am of opinion that the affirmativemust be proved by the defendant. I think that it being a negative,the plaintiffs are not bound to prove it; .but that it rests with thedefendant to establish his certificate.”
In Roche v. Willis1 Lord Hewart C.J. follows with approval the caseof The King v. Turner, Avory and Humphreys JJ. agreeing with him.
In Williams v. Russell ’ Talbot J. quotes The King v. Turner withapproval.
1 171 English Reports 978.* 151 Law Times Reports 154.
3 149 Law Times Reports 190.
342
Chivers St Sons, Ltd. v. Commr. of Income Tax.
In my opinion, therefore, the onus was on the respondent to provethat he was a registered medical practitioner.
It is unnecessary to express an opinion on the alternative line ofargument, viz., that the prosecution had proved all it could reasonablybe expected to prove. I need only add that section 33 (1) merely putsthe copy of the register on the same footing as a copy of a publicdocument and section 33 (2) by its very terms implies that the certificatemay be produced by either party.
The acquittal is set aside and the case will go back for trial.
Set aside.