Cherpion v Director of Public Prosecutions

Magistrates have a broad discretion to refuse an adjournment where the case has already been substantially delayed and the requested adjournment is unnecessary to secure a fair trial. In deciding whether the statutory requirement for a hospital specimen has been met, the court may assess the evidence as a whole and draw common-sense conclusions. The identity of the medical practitioner in immediate charge may be established by the surrounding circumstances, including the practitioner’s conduct and the evidence of those present. Direct evidence from the practitioner is not essential.

The appellant was convicted after a blood specimen taken in hospital showed a concentration of 170 milligrams of alcohol in 100 millilitres of blood. The prosecution had indicated that Dr Kropelnicki would attend, but failed to warn her. The magistrates refused the appellant’s application to adjourn so that she could be called, proceeded without relying on disputed hearsay, and found that she was the medical practitioner in immediate charge of his case. The appellant appealed by way of stated case, challenging both the refusal to adjourn and the sufficiency of the evidence concerning the doctor’s status.

1. Appeal dismissed. The magistrates were entitled to refuse the adjournment. Although the prosecution was plainly at fault in failing to request Dr Kropelnicki’s attendance, the magistrates had to determine the application on the circumstances before them. The case had already taken too long, the other witnesses were present, and the disputed hearsay would not be relied upon. The decision was within their discretion and did not render the trial unfair.
2. For the purposes of section 9(1) of the Road Traffic Act 1998, the magistrates were entitled to consider the evidence collectively and draw common-sense conclusions about who was the medical practitioner in immediate charge. The evidence showed that Dr Kropelnicki received the appellant at hospital, examined his leg, sent him for an x-ray, and permitted the blood test to take place. The appellant’s evidence and the police evidence supported that conclusion.
3. It was therefore open to the magistrates to find that Dr Kropelnicki was in immediate charge, notwithstanding that she was an orthopaedic surgeon and that another doctor might have been involved in treatment. The conviction was upheld. The appellant was ordered to pay £943 costs to the prosecution.

1. Magistrates’ Court: convicted the appellant and found that Dr Kropelnicki was the medical practitioner in immediate charge of his case.
2. High Court (Administrative Court): answered the stated questions in the negative and affirmative respectively, dismissed the appeal, and ordered payment of £943 costs.