LAW REPORTS.

New Zealand Police Gazette, Volume XLI, Issue 28, 19 July 1916, Page 512

LAW REPORTS.

(“Times Law Reports,” Vol. xxxii, page 452.)

|Court or Criminal Appeal—(Lord Reading, C.J., Ridley and Avory, JJ.) — 10th April, 1916.]

HEX v. WILLIAM ALBERT WILLIS

Criminal~\Law—Evidence of Wife of Accomplice—Rule as to Caution in Accepting Evidence of Accomplice — Corroboration—When required.

The rule that the evidence of an accomplice must! be received with caution does not extend to the evidence of the wife of an accomplice where the wife herself is not an accomplice and has not acted dishonestly. Except in cases provided for by statute corroboration implicating the accused is not required.

THE appellant in this case had been tried at the London Sessions on a charge of receiving, and on conviction had been sentenced to three years' penal servitude. Mr. Huntil/ Jenkins appeared for the appellant; and Mr. Itnland Oliver appeared for the Crown. The Lord Chief Justice, in delivering judgment, said that the appellant had been charged with receiving] twenty-seven chests of tea. Several persons had been concerned in the robbery; but it was unnecessary to deal with the facts, for they were admitted. At the trial three persons who were charged with the appellant pleaded “ Guilty ”■ ; and one of the witnesses called against the appellant was a Mrs. Brooks, who was the wife of one of the men who had pleaded “ Guilty.’ The man himself was not called, and Mrs. Brooks gave evidence that she herself had had nothing to do with the crime and had tried to prevent her husband from taking part in it. It was not suggested that she was herself an accomplice or had acted dishonestly, but it was argued that, as she was the wife of a person who had taken part in the crime, and as husband and wife were one in law, her evidence was only of the same value as if it had been given bv her husband. At the trial the Deputy-Chairman had refused to accept that contention. On p. 457 of Archbold’s Criminal Pleading (1910 edition) there was a statement that the testimony of the wife of an accomplice was not such as a jury ought to rely upon in confirmation of his statement. The only authority for that was Rex v. Neal (7 C. and P., 198) commented on in Rex v. Payne (29 The Times L. R., 250). In Rex v. Neal (supra) the decision, as reported, was wrong. The proper course there would have been to direct the jury that the evidence must be received with caution, not to direct as a matter of law that the prisoner must be acquitted. But, in any event, that case had no app'ication here, for there the accomplice was called and there was no confirmation of his story beyond the evidence of his wife. Thus, that case was no authority for saying that in law the evidence of Mrs. Brooks must be treated as if it had been the evidence of her husband, and the DeputyChairman was right in refusing so to treat it. At the trial another point was raised. Counsel for the prisoner submitted that corroboration must implicate the accused. There had been much discussion on the point, but apart from cases in which it was otherwise provided by.statute the rule was that corroboration need not implicate the accused. The authorities were reviewed by this Court in Rex v. Louis

Cohen (10 C.A.R., at p. 101), and apparently it had been supposed that in that case the Court intended to reaffirm the decision in Rex v. Everest (2 C.A.R. 130). But it was not their intention to do so ; and they could not properly have done so, for Rex v. Everest (supra) had been overruled by the later case of Rex v. Blather wick (6 C.A.R. 281). The appeal against conviction therefore failed, and must be dismissed. As to sentence, it was a case in which a serious view was justified. It was a first conviction, but it was pretty evident that this was by no means a first offence. The sentence must therefore stand.

Solicitors. — Messrs. Peet and Manduell; the Director of Public

Prosecutions

(“Times Law Reports,” Yol xxxii, page 173.)

[Court of Criminal Appeal—(Lord Reading, C.J., Atkin and Low, JJ.) —17th April, 1916.]

REX v. DENOEL

Criminal Imw—Practice, Two irreconcilable Defence# —Discretion of Counsel.

The appellant was charged with rape and his defence at the Po'ice Court was that the woman’s story was an invention. The appellant was committed for trial, and his solicitor briefed counsel and gave him written instructions that the defence was that the woman’s evidence was untrue. Nothing was said in the brief about consent, but before the trial the solicitor orally informed counsel that the appellant stated that the woman had consented. Counsel conducted the case on the footing that the woman’s evidence was untrue, and the appellant was convicted.

Held, That even if counsel was orally instructed to put forward the defence of consent, yet as he had written instructions to contest the facts and as the two defences were irreconcilable, counsel had exercised a wise discretion, and his conduct of the case afforded no ground for quashing the conviction.

The appellant, Arthur Denoel, was convicted of rape at Birmingham Assizes before Mr. Justice Lawrence, and was sentenced to 12 months' imprisonment with hard labour. Mr. Birkett appeared for the appellant ; and Mr. Band ands for the Crown.

According to counsel’s statement the appellant was a Belgian refugee who was working as a fitter at the Austin Motor Works, Longridge. He lived at a hostel belonging to the firm, and the offence was committed on the Ist March last against a housemaid employed there.

Mr. Birkett said that the defence of consent was not raised to the police or before the Magistrates. The appellant was defended by a solicitor, but nothing appeared in the brief as to this particular defence. Before the trial, however, the solicitor orally informed the counsel who then appeared for the defence that the appellant stated that the prosecutrix consented; and counsel also had before him the proofs of Belgian witnesses whose evidence was intended to discredit the evidence of the prosecutrix and assist the defence of consent. In his discretion counsel refused to raise that defence, and relied on the defence that the appellant had not committed the offence. He (counsel) submitted that counsel had no such discretion. Where a prisoner raised a defence counsel had no discretion to say that he would not raise that defence, but would depend on another ; when he knew that the appellant had said, “ I did it,” he had no discretion to raise the defence that he had not done it.

Counsel then dealt with the facts of the ease, and submitted that if the defence of consent had been raised it was impossible to sav, on the facts, that the jury would have come to the same conclusion. There could not be two defences in a case of this kind. He submitted that the proper course would have been to inform the appellant that both his defences could not be raised simultaneously, and to have tendered him advice; but if the appellant had insisted on his defence of consent, counsel should either have raised that .'defence or! have withdrawn from the case. The appellant also stated in his grounds of appeal that he had instructed his counsel to call him as a witness. The jury would naturally draw a strong inference from the fact that he was not called. Counsel for the Crown was not called upon. The Lord Chief Justice, having stated the facts, said that the ground of appeal was that the defence which the appellant had instructed his counsel to raise was not raised, and that his witnesses who, it was contended, could have proved material facts, were not called. That defence was consent, and it was important to see what the facts were in order to determine whether counsel was ever instructed to put forward that defence and that defence only, and whether counsel, if he had a discretion vested in him, had exercised it wrongly. Matters of principle had been raised which might some day have to be considered, but on the facts his Lordship did not think that any real question of principle was raised. On the facts it was impossible to sav that the prosecutrix had consented. The defence set up by the appellant at the Police Court was that the woman's story was an invention, and he told the police that he had done nothing to the woman. The solicitor in his brief said nothing about consent ; but at some stage lie told counsel of this statement by the appellant. Counsel conducted the case on the footing that the woman's evidence was untrue. The jury heard her, and came to the conclusion that her evidence was true, and the learned Judge, with all his experience, said, after the verdict, that he believed her. Even assuming that counsel was instructed to make the defence of consent—and they were not satisfied of that- what was he to do ? He had no instructions not to contes the facts ; on the contrary, he had written instructions to do so. The two defences were irreconcilable. Consequently, counsel depended on the defence as to which he had written instructions, and the Court was of opinion that he had exercised a very wise discretion. If there had in fact been| consent, it struck them as odd that a citizen of any civilized community should not have realized at once that the consent of a grown woman was a good defence to a charge of that kind. The appeal must be dismissed.

Solicitors.— Messrs. Bowman & Ekins, Birmingham; Director oj Public Prosecutions.