LAW REPORTS.

New Zealand Police Gazette, Volume XXXVII, Issue 3, 24 January 1912, Page 54

LAW REPORTS.

(“ Times Law Reports,” Vol. xxviii, page 2.)

[Court op Criminal Appeal (Lord Alvekstone, C.J., Lawrance, Phillimore, Pickpord, and Hamilton, JJ.) —lßth August, 1911.] Rex v. Hackford Machardy. Criminal Law Appeal Special Verdict —* ‘ Guilty, but Insane ” — Conviction —Trial of Lunatics Act, 1883 (46 and 47 Viet., c. 38), s. 2—Criminal Appeal Act, 1907 (7 Edw. VII, c. 23), ss. 4, 5. The appellant was indicted for unlawfully and maliciously setting fire to a dwellinghouse, a person being therein. The jury returned a special verdict under the Trial of Lunatics Act, 1883, that the appellant was guilty of the act charged, but was insane at the time. An order was thereupon made for his detention during his Majesty’s pleasure. Held, (1) approving Rex v. Ireland (26 “The Times” L.R., 267 ; [l9lo] 1 K. 8., 654) that the finding of the jury that the appellant was guilty of the act charged against him was a “ conviction ” within the meaning of that term in seotion 3 of the Criminal Appeal Act, 1907, and therefore that the appellant had the right of appeal given by that section; but, (2) that the finding of the jury that the appellant was insane was not a part of the “ conviction,” and therefore that no appeal lay from that finding.

This appeal was originally heard on July 17th and 18th, before the Lord Chief Justice, Mr. Justice Pickford, and Mr. Justice Avory, and was reported in The Times of the 19th of July, when judgment was reserved. On the 24th of July the Lord Chief Justice ordered the case to be reargued before five Judges, and the argument was heard on the 29th of July, when judgment was reserved. Mr. Bodkin and Mr. McKeever appeared for the appellant, and Mr. A. J. Lawrie for the Crown.

The appellant was indicted at the Lancaster Assizes on the 29th of June, before Mr. Justice Lush, on a charge, under section 2 of the Malicious Injuries to Property Act, 1861, of unlawfully and maliciously setting fire to a dwellinghouse, a person being within. The jury returned a special verdict under the powers conferred by section 2 (1) of the Trial of Lunatics Act, 1883, that the appellant was guilty of the act charged, but was insane at the time. An order was then made for his detention during his Majesty’s pleasure. The question of his sanity was nob raised by the appellant, bub by the learned Judge at the trial. The appellant appealed on the ground that he had been convicted.

Mr. Bodkin, on behalf of the appellant, contended that he had been convicted on indictment so as to entitle him to appeal to the Court of Criminal Appeal, and that Rex v. Ireland (26 “ The Times” L.R. 267; [l9lo] 1 K.B. 654), which decided this, was rightly decided. Section 2 (1) of the Trial of Lunatics Act, 1883, had altered the law in the case where a jury found the prisoner guilty of the acts charged, but insane at the time he did them. That amounted formerly to a verdict of acquittal, but the above subsection had changed that to one of conviction, and although convicted for the purpose of appealing to this Court, the appellant did not come within the ordinary category of convicted persons. It was necessary to show that in doing the acts charged his state of mind was “ malicious,” and that there was mens rea : the jury’s verdict negatived both. The appellant was entitled to be released because he could not be detained as a criminal lunatic, as he was not a lunatic, and he could not be remitted to prison under section 3 of the Criminal Lunatics Act, 1884, wnich expressly excepted from its operation the case of a prisoner as to whom this statutory special verdict had been given. This was a statutory verdict, and could not be divided. The proviso to section 4 (1) of the Criminal Appeal Act, 1907, did not apply, for if the Court, although of opinion that the appeal might be decided in the appellant’s favour, dismissed it, a miscarriage of justice would occur, and the appellant would be liable to be kept in confinement as a criminal lunatic for an indefinite period. Rex v. Larkins (27 “The Times” L.R., 438; 75 J.P. 320); Reg. v. Pembliton (43 L.J. M.C. 91), Reg. v. Tolson (58 L.J. M.C. at p. 105); Rex v. Owen (4 C. and P. 236); and Reg. v. Dudley and Stephens (14 Q.B.D. 273) were also referred to. Mr. A. J. Lawrie, for the Crown, contended that the Court had no jurisdiction to entertain the appeal, as there had been no conviction on indictment within the meaning of section 3 of the Criminal Appeal Act, 1907, and Rex v. Ireland (supra) was wrongly decided. The appellant was acquitted, not convicted, for the Trial of Lunatics Act, 1883, had effected no substantial ohange in

the law, but one of form only. The same results followed the verdict as before ; but if the Court had jurisdiction, the appeal should be confined to the acts charged, for otherwise, especially in murder cases where the defence of insanity was raised, juries, who were very ready to adopt it, would bring in the special verdict, and the Court, finding no evidence to support it, would be obliged to quash the conviction, and the prisoner would get off. This result could not have been intended.

The Court reserved its judgment. The Lord Chief Justice, in delivering judgment, said he had to deliver the judgment of the Court by a majority of the Judges. In the opinion of the Court the appeal should be dismissed.

The appellant was indicted on a charge of arson under section 2of 24 and 25 Victoria, chapter 97. The jury found a verdict in accordance with she Trial of Lunatics Act, 1883, that the appellant was guilty, but insane at the time so as not to be responsible according to law. In the case of Rex v. Ireland ([l9lo] 1 K.B. 654) the Court of Criminal Appeal had decided that an appeal could be brought under the Criminal Appeal Act against such a verdict. Arguments had been addressed on behalf of the Crown as to whether the decision was correct. In the opinion of the Court it was, the appellant having been convicted on indictment within the meaning of section 3 of the Criminal Appeal Act, and the finding of the jury that he was guilty of the act charged against him was a conviction. The prisoner, continued his Lordship, is detained under an order following the verdict, and if the view taken in Rex v. Ireland is not correct, although the finding of the jury as to the guilt of the prisoner might have been the result of the admission of improper evidence or of gross misdirection, there would be no appeal. The Court has now to consider whether, assuming Rex v. Ireland to be correctly decided, an appeal lies against the finding of the jury that the appellant was insane, and whether in fact that part of the finding is a part of the conviction against which an appeal lies. In the opinion of the Court it is not. It is a finding of the jury in aid of the prisoner and in his relief. Under the statute they found him guilty of the act or omission charged against him, but that he was insane when he did the act or made the omission. It is doubtful whether it can be successfully contended that the finding negatives any essential ingredient of the offence, but even assuming that it does it is not in the opinion of the Court a part of the conviction, but a special verdict of the jury in relief of the prisoner. In the opinion of the Court this view is supported by subsection (4) of section 5 of the Criminal Appeal Act, which allows the Court even in the case of a man convicted and sentenced in the ordinary way to find that he was insane and make an order under the Act of 1883. The detention of the prisoner under the Act of 1888 is not a part of the conviction, but is the result of a. statutory provision as to how a person found insane by such a special verdict shall be dealt with. For these reasons the Court is of opinion that there is no appeal against th 9 part of a special verdict under the Act of 1883 which finds the prisoner to be insane. The appellant.—l think it is a shame that I should be sent to an asylum when there is no evidence of insanity found against me. The Lord Chief Justice. —l will make a communication to the Home Secretary in the matter. The appellant.—Thank you. [Solicitors —Registrar of the Court of Criminal Appeal; Director of Public Prosecutions.]

(“Times Law Reports,” Vol. xxviii, page 3.) [Court of Criminal Appeal-—(Lord Alverstone, C.J., Darling and Plamilton, JJ.) — 28th September, 1911.] Rex v. Godinho. Criminal Law — Evidence—Statement by Prisoner in Nature of Confession, A statement in the nature of a confession was made by a prisoner to a police officer. The police officer had not introduced the subject or held out any hope of pardon to the prisoner. Held, That such statement was properly admitted n evidence against the prisoner. This was an appeal from a conviction for murder on trial before Mr. Justice Avory at the Central Criminal Court. Mr. H. D. Rooms appeared for the appellant; and Mr. R. D. Muir andjjMr. Travers Humphreys for the Crown. Mr. Roome said that the appellant was a Lascar, a bath attendant on board the P. and 0. steamship China. He had been convicted of the murder of Miss Brewster, a stewardess on board this vessel, on the morning of the 11th of June,

when the ship was in the Indian Ocean. The ease for the prosecution was that the appellant was seen near the cabin of the murdered woman at about 3.15 a.m., and that the appellant denied this. It certainly could not be definitely stated that the murder was committed at this hour. When the body was found at 5.45 a.m. the evidence of the doctor on one occasion was that the deceased had been dead two hours. Although a monsoon was raging very little water had been shipped through the open pore-hole. It was suggested for the Crown that the murder was committed with a port-key, and the appellant’s port-key was missing. Seven or eight bloodstains or smears had been found upon the appellant’s trousers. There was evidence that the appellant bore ill-will to the deceased and had written her abusive post-cards, but it appeared that the quarrel was trifling. Evidence was also admitted that at Bow Street the appellant had said to a police officer : “ If I say it my faults will they pardon me ? Is King George here ? If I say it my faults and ask pardon will he relieve me ? It his Coronation ten days ago, so perhaps he relieve me, or if he no pardon me will they put me in gaol or hang me up ? It both our faults; we fighting.” Counsel’s submission was that it appeared from his crossexamination of the officer that those were not the exact words used and therefore this evidence was inadmissible on the authority of Reg. v. Sexton (M.S. Chetw. 1, Burn’s Justice). Further, as it appeared the statement was made in hope of pardon it was inadmissible, and he referred to Reg. v. Dingley (1 Carrington and Kirwan, 637) and Reg. v. Blackburn (6 Cox C. 0., 333), and this was so although a hope of pardon had not been held out to the appellant by any one having authority to do so. If the evidence of this statement were excluded as being inadmissible there was very little evidence against the appellant. There was, perhaps, evidence giving rise to suspicion, but it fell far short of certainty. Mr. Justice Avory in his summing up had not put before the jury the points he made in behalf of the appellant. Counsel for the Crown were not called upon to argue. Mr. Justice Hamilton in delivering the judgment of the Court said that the appellant had been convicted of a murder whilst on board the P. and 0. steamship China in the Indian Ocean between Colombo and Aden. One of the stewardesses, a Miss Brewster, was found in her cabin on the 11th of June last with her head broken in apparently by some blunt instrument, probably a port-key. It was clear she had been murdered by somebody, and by somebody on board the vessel. Suspicion fell upon the prisoner, who was arrested and brought to trial. The first point taken on the appeal was that a statement made by him to an officer in charge at Bow Street—a statement made in English just before he went into Court—was wrongly admitted at the trial and was inadmissible. When the statement had been made the officer made a note in shorthand of what had been said. The evidence of the officer was that these were the exact words used, and ho made a note of them when they were fresh in his mind.

It was contended that this statement was not admissible against the prisoner on the ground that it was in the nature of a confession and made under such circumstances that the appellant was influenced by the hope of pardon. It was admitted that this contention went beyond anything that had been laid down in the decided cases, because where such statements had been excluded as being inadmissible some inducement had been held out to the prisoner by a person authorized to make it. It was not suggested that in this case this officer had introduced the subject or had held out any hope of pardon to the appellant. The two cases that were relied on were Reg. v. Dingley (supra) and Reg. v. Blackburn (supra). Those cases must be distinguished from this case because it appeared that there hope of pardon had been held out by parties authorized to do so. If such hope were held out by a person not so authorized the statement made by a prisoner would be admissible, and this was an a fortiori case. Most persons who made admissions against themselves did so in the hope of obtaining some benefit by the step, and it would be illogical to hold that a statement in the nature of a confession should be excluded from evidence as inadmissible because the person making it hoped to do himself some good by making it. He thought, therefore, that this ground of ap peal failed. Then it was suggested that the case of Reg. v. Sexton (supra) showed that unless the words taken down were the very words used, the statement must be excluded. That ease had no bearing here, because the evidence of the officer was that the words he had taken down were the ipsissima verba used by the appellant. The appellant had not elected to give evidence, so that this evidence remained uncontradicted. In the case of Reg. v. Sexton what had been written down by the officer was read over by him to the prisoner, who said it was the truth and signed it. This case has been doubted, as appeared from the notes to thß last

edition of Russell on “Crimes and Misdemeanours,” and so far as the Court was able to ascertain had not been followed. As to the rest of the case it had been contended that the learned Judge did not enumerate to the jury, and comment upon, every point made by the counsel for the defence in his speeches and cross-examinations. It was quite impracticable for a Judge to do so, and such a course might be most prejudicial to a prisoner. It was not suggested that he had misrepresented to the jury any of the evidence, and it appeared that he had pointed out to them that the evidence consisted of a chain of circumstantial evidence some of the links of which were not as strong as the rest— e.g., that the quarrels between the appellant and Miss Brewster were not serious. Yet it was shown that the appellant had been engaged in a petty persecution of the deceased woman. There was evidence that he had this ill-feeling towards her, and there was no evidence that anybody else on board the ship felt ill-will towards her.

There was evidence that the appellant was seen near her cabin at about 3.15 a.m., and that he denied that he was there. It was true that the exact time that the murder was committed was uncertain ; it depended on inferences. The port-hole of Miss Brewster’s cabin was open ; it ought to have been shut. The port-key was in the bunk. The appellant had a port-key, and he was told to go and get it, but he returned saying he could not find it. His trousers were found drying in the bath-room, and there were spots of blood upon them. It was said that if he had committed the murder he must have covered himself with blood. It was unnecessary to go into all the possibilities, but if his clothes had been stained he had ample opportunity to get rid of them. The Court was unable to review the verdict of the jury, and the appeal must he dismissed. [Solicitors —Registrar of the Court of Criminal Appeal; Direotor of Public Prosecutions.]

(“ Times Law Reports,” Vol. xxviii, page 15.) [Court of Criminal Appeal—(Darling, Coleridge, and Hamilton, JJ.) — 23rd October, 1911.] Rex v. Hill. Criminal Law — Wounding—Defence of Self-defence Defence not put to Jury—Miscarriage of Justice. The appellant was convicted of felonious wounding. At the trial he did not deny the wounding, but said that he acted in self-defence. This defence was not put to the jury, the only question left to them being whether or not the appellant was insane. Held, that as the appellant’s defence had not been left to the jury, the conviction must be quashd. This was an appeal against a conviction at the Central Criminal Court, before the Recorder, of felonious wounding, when the appellant was found guilty but insane. Mr. Oddie appeared for the appellant; and Mr. Boyd for the Crown. Mr. Oddie said the appeal was against the verdict of guilty only, as since Rexi;. Machardy (28 The “ Times ” L.R. 2) no appeal lay against the verdict of insanity. The case for the Crown was that Police-constable Ansell saw the appellant, a man of colour, at 6.20 in the morning behaving in a peculiar manner in the street; that he spoke to him, and that the appellant attacked him and stabbed him with an awl. The police-constable admitted that he knocked the appellant down with his truncheon. The appellant’s story was that he acted in self-defence, and that Ansell spoke to him and asked him what he was doing; he replied that he was reading the advertisements, and was ordered to move on, and then struck by the constable. He was undefended by counsel at the trial, was not invited to give evidence on oath, and not allowed to state his defence at all. The suggestion of insanity came from the Recorder, and was equally a surprise to the prosecution and to the appellant. In the summing up the only case left to the jury was whether or not he was insane. [Mr. Justice Coleridge. —lt really came to this—-“ If you find him insane you will find him guilty,” instead of “ If you find him guilty, then you can find him insane.”] Mr. Oddie said the appellant’s defence, if he established the facts, was a perfectly good one ; in any case he was entitled to have it left to the jury. There were no previous conviotions against him. He referred to Rex v. Dinnick (26 The “ Times ” L.R. 74 ; 74 J.P. 32). Mr. Boyd submitted that no substantial miscarriage of justice had occurred, and that the verdict would have been the same under a direction on the other question. He referred to Rex v. Richards (4 Crim. App. Rep. 161). Mr. Justice Darling said that the Court had come to the conclusion with very great regret that the conviction must be quashed, because their judgment amounted to saying that

the question of the guilt or otherwise of the appellant had not been left to the jury by so experienced a Judge as the Recorder of the City of London. The appellant was indicted for felonious wounding, and did not deny the wounding, but said he did it in self-defence. Therefore there was a question whether, if entitled to defend himself ac all, he used force more than sufficient to protect himself against the officer’s violence. It might be that the defence was a thoroughly bad one, but it ought to have been left to the jury. The only question in fact left was whether or not the appellant was insane.

The Court had no means of going into the question whether he was insane or not since the decision in Rex v. Machardy [supra). Speaking for the present members of the Court, they would wish a reconsideration of that case, which was a decision of a majority only. In their opinion the present case did not come within the exception in the proviso to section 4 (1) of the Criminal Appeal Act, 1907, for it was a miscarriage of justice if a prisoner’s defence, however weak, was not left to the jury—Rex v. Dinnick [supra). No doubt the recorder thought he was acting in the appellant’s interests, and that he had found a better defence for him than he had found for himself. The conviction must be quashed. On Mr. Boyd’s application the Court ordered the appellant to be detained in custody as there was another indictment against him. [Solicitors —Registrar of the Court of Criminal Appeal Director of Public Prosecutions.]

(“ Times Law Reports,” Vol. xxviii, page 36.) [K.B. Div. —(Bray and Bankes, JJ.) — 31st October, 1911.] Eccles and Co. v. Louisville and Nashville Railroad Company. Practice Witness Obligation to | produce Documents Documents not the Property in but the Physical Possession of Witness Foreign Tribunals Evidence Act , 1856 (19 and 20 Viet., c. 113), s. 5. If a servant who is called upon to produce documents at a trial, or at an examination under the Foreign Tribunals Evidence Act, 1856, has the physical possession of the documents, he is bound to produce them, even although the legal possession is in his master, unless he can show good cause why he should not do so. Semble, it is good cause for not producing the documents if the servant has been forbidden to do so by his master. Practice Appeal Criminal Cause or Matter—Writ of Attachment—Refusal by Witness to produce Documents. A witness refused to produce certain documents at an examination under the Foreign Tribunals Evidence Act, 1856, whereupon an application was made in Chambers for leave to issue a writ of attachment against him. The Judge refused to make the order. Held, That the Judge’s order was not made in a criminal matter, inasmuch as what was sought to ha done by the writ of attachment was to compel the witness to produce the documents, and not merely to punish him, and therefore that an appeal lay from the Judge’s decision. There were two appeals in this matter from the decision of Mr. Justice Lush in Chambers in the following circumstances : In the course of certain proceedings in the United States between the plaintiffs, who are cotton brokers in Liverpool, and the defendants in regard to the liability of the latter in respect of certain bills of lading for cotton alleged to have been forged, an order was obtained from the master, under the Foreign Tribunals Evidence Act, 1856, that one C. Nickel should attend before a Commissioner in this country and give evidence and produce certain bills of lading and correspondence relating to the business of the firm by which he was employed, which documents and evidence were material in the action in America between the plaintiffs and the defendants. An application was made to Mr. Justice Lush to discharge that order, which was refused. The examination of the witness took place, and he refused to produce the bills of lading and correspondence, and also declined to answer certain questions as to who in fact had charge of the correspondence. Thereupon the plaintiffs applied to Mr. Justice Lush for leave to issue a writ of attachment against the witness for refusing to obey his subpoena. Mr. Justice Lush refused to make the order upon the ground that the witness was a servant only, and that the legal possession of the documents in question was in the firm by which he was employed. From this decision the plaintiffs appealed, and Mr. 0. Nickel also appealed from the decision of Mr. Justice Lush refusing to discharge the order made for his examination on commission.

The Foreign Tribunals Evidence Act;, 1856, section 5, provides as follows: “ Provided also that every person examined under any order made under this Act shall have the like right to refuse to answer questions tending to criminate himself, and other questions which a witness in any cause pending in the Court by which or by a Judge whereof or before the Judge by whom the order for examination was made would be entitled to ; and chat no person shall be compelled to produce under any such order as aforesaid any writing or other document that h 8 would not be compellable to produce at a trial of such a cause.” Mr. F. A. Greer, K.C., and Mr. Henn Collins appeared for the plaintiffs ; and Holman Gregory, K. 0., and Mr. Dunlop for Mr. Nickel.' Mr. Greer, for the plaintiffs, contended that Mr. Justice Lush was wrong in holding that the witness was justified in refusing to produce the documents upon the ground that he was a servant. If a witness was in fact in control of the documents—and the evidence was that Nickel was in charge of the department concerned with the documents —he was bound to produce them unless he could show that his master had taken them out of his custody by an order that he should not produce them (Amey v. Long, 9 East, 473). It was sufficient to show actual possession of the documents, and it then became a question for the Court whether the witness offered a sufficient excuse for not producing them. Mr. Gregory contended that no appeal lay from the decision of Mr. Justice Lush upon the ground that the refusal to issue a writ of attachment was an order made in a criminal matter. Assuming that an appeal lay, the decision of Mr. Justice Lush was right. If these documents were in the possession of the respondent’s master in the sense that they belonged to the master and were upon his premises, and the respondent only had access to them for the purposes of his master’s business, then there was no power to call on the clerk to produce them outside his master’s office, at least in the absence of consent by the master. The persons requiring the production of the documents ought to take the proper steps to obtain the presence of the right persons before the Court to produce the documents. Mr. Justice Bray, in giving judgment, dealt first with the appeal of Mr. Nickel from the order of Mr. Justice Lush, refusing to discharge the order for his examination, and said that in his opinion that appeal must be dismissed. Continuing, he said that the next question, which raised points of greater difficulty, was whether the plaintiffs were entitled to a writ of attachment. Two objections were taken to the writ being ordered to issue. First it was said that there was no appeal from the decision of Mr. Justice Lush, because the matter was a criminal one, and secondly, it was said that the respondent was a mere servant, and therefore the legal possession of these documents being in his master he was not bound to produce them. With regard to the matter being a criminal one, it seemed to him that the oases showed that such was not the case. He thought they showed this, that if what was done by the writ of attachment was to compel the witness to do what he had been ordered to do—namely, to produce the documents, and not merely to punish him—then the proceeding was not a criminal one, and an appeal lay from Mr. Justice Lush’s decision. The next question was whether that decision was right. Was it correct to say that where a witness was called upon to produce documents at a trial—for that was the test provided by the Act—it was an answer in every case for him to say that he was a servant and the legal possession of the documents was in the master ? Now it seemed to him that at a very early date it was laid down that this was not sufficient. In his view the true rule of law was that if a servant had the physical possession of the documents, even though the legal possession was in the master, the servant must produce them, unless ne could show some good cause why he should not produce them. It would probably be a good cause if the servant could say that the master had forbidden him to produce them, because to do so after such prohibition would involve a breach of duty on the part of the servant. It might be said that in such circumstances the master had taken the documents out of the servant’s physical possession. There might be other cases which would constitute good cause on the servant’s part for refusing to produce the documents, but it was unnecessary for him to specify them. It was sufficient to say that in the present case the servant did not set up any good ground for refusing to produce the documents. The last point was, were the documents in the witness’s physical possession or not ? Had he the custody of the documents, and would it be a violation of any duty he owed to his master it he were to produce them. Looking at the evidence as a whole, it seemed to him that it clearly showed that Mr. Nickel had the custody of the documents, that they were in his physical possession, and that he would not be failing in his duty to his master if he produced them. In these circumstances, it seemed to him that they ought to order that the plaintiffs should have leave to issue a writ of attachment. It was unnecessary

perhaps to deal with the question of the verbal answers given by the witness, but in his (Mr. Justice Bray’s) opinion the witness had also been guilty of contempt of Court in regard to them. Mr. Justice Bankes gave judgment to the same effect, and their Lordships made an order for a writ of attachment against Mr. Nickel, directing that the writ should not issue for fourteen days in order that the respondent might have an opportunity of producing the documents and answering the questions put to him. Solicitors —Pritchard, Englefield, and Co., for Simpson, North, Harley, and Co., Liverpool; Scanton and Hudson, agents for H. Forshaw and Hawkins, Liverpool.]