LAW REPORT.

New Zealand Police Gazette, Volume XXXVII, Issue 8, 28 February 1912, Page 123

LAW REPORT.

(“ Times Law Reports,” Vol. xxviii, page 120.)

[Goukt of Criminal Appeal (Lord Alverstone, C.J., Hamilton and Bankes, JJ.) — sth December, 1911. J Rex v. Thomas Mason. Criminal Law — Murder — Evidence —Expert giving Evidence as to whether Wound self-inflicted or not —Expert not having seen Body of Deceased — Admissibility. In a trial for murder an expert who has not seen and examined the body of the deceased, but who has heard a description given by a doctor or other witness who has seen the body and the wounds thereon, may be called as a witness and may competently be asked whether in his opinion, assuming the facts described by the witness who has seen the body to be true, the wounds could have been self-inflicted or not. This was an appeal against a conviction for murder at Stafford Assizes on a trial before Mr. Justice Pickford. Mr. Graham Milward appeared for the appellant, and MrCranstoun and Mr. Brice for the Crown.

Mr. Milward said the appellant had been engaged to a girl named Sarah Sturdy. Both of them were quite young — 20 or 21 years of age. On 11th July both left their homes, and were away together for a period of about forty-eight hours, during which time they walked about the streets. They were both out of work. On the night of 12th July they slept on the verandah of a cricket pavilion, and on that evening they had been seen at a refreshment-house. The girl was crying, and the young man was comforting her. On the next morning, the 13th July, the dead body of the girl was found on the verandah. She was stabbed through the heart with a knife, the property of the appellant; the knife remained in the wound. The appellant later gave himself up to the police, and made a statement incriminating himself. Later, having seen his mother, he made two more statements incriminating himself. His explanation in the witness-box for making these statements was that he had lied, as he wished to be with the girl. He gave evidence that the girl had committed suicide. The body was seen as it lay by two doctors, one of whom, Dr. Harry Jessop, was called at the trial. He took a most careful note of all the circumstances in which the body was found. On the facts of the case, all of which it was unnecessary to give to the Court, the sole question for the jury was whether the stab was self-inflicted or the work of an assailant—the appellant. The other doctor who had seen the body was not called, although the prosecution offered to call him. But that fact only threw into greater relief the evidence of Mr. Pepper, the Home Office expert.

He submitted that this evidence was inadmissible. Mr. Pepper had not seen the body, but he had heard the evidence of Dr. Jessop, and he had read the depositions. It was the fact that he had seen the heart of the girl that morning. But this was not material, for he only used that examination as a basis for his opinion as to the time the girl lived after she had been stabbed. Having stated that in his opinion it was barely possible, and in the highest degree improbable, that the girl could have stabbed herself, Mr. Pepper was eventually asked ; “ Is it your opinion that it (the stab) was inflicted by a person other than the deceased?” And he answered “ Yes.”

Counsel submitted that the whole of Mr. Pepper’s evidence was inadmissible, for where the sole issue before the jury was the question whether a blow was self-inflicted or inflicted by an assailant, an expert witness who had not seen the wound or the body could not be called to give his opinion on that issue. He had taken this objection at the trial. If on this he was wrong the question he had specifically mentioned was clearly inadmissible ; in the first place, it was leading; further, the proper form of question for an expert witness was not “Who did this?” but, “ Assuming certain facts to be true, who do you say would have done it ” ?

In the course of his argument Mr. Millward cited Reg v. Shaw (6 C. and P. 672), but only reported on this point in Graves MS.S., and mentioned in Russell on Crimes and Misdemeanours (7th ed., at p 2263), R. v. Francis (4 Cox, C.C. 57), and “Archbold’s Criminal Pleading” (24th ed., at p. 451). The Lord Chief Justice, in delivering the judgment of the Court, said that the appeal must be dismissed. The point raised was one of importance, viz., whether an

expert witness at a murder trial who had not seen and examined the body, but had only heard the description of the wounds on the body by a doctor or other persons who had seen them, could be called as a witness to say whether he was of opinion that the wound was self-inflicted or was caused by a blow from an assailant. He did not deal with or consider the precise form of question ; for no point was taken as to this at the trial. The real contest was whether the question stated by the learned Judge in the summing up was admissible—viz., whether an expert witness who had not seen the body could be asked whether in his opinion, assuming the-e facts to be true, the wound could have been self-inflicted ; although it might be that the question was asked in this case so as to appear as if it were a question whether the appellant had committed the offence with which he was charged. It seemed to him that the law was correctly stated in Archbold’s Criminal Pleading (24th Edition, at p. 452), where it was said: “So upon an indictment for murder the deceased’s wounds, &c., being described, a surgeon may be called upon to give in evidence his opinion whether the deceased died in consequence of his wounds, or from natural causes.” There was no distinction in principle between the case put there and that in this case. Ho thought the evidence of Mr. Pepper was clearly admissible as being the evidence of an expert witness on assumed facts. The appeal therefore would be dismissed. [Solicitors —The Registrar of the Court of Criminal Appeal; the Director of Public Prosecutions.]