LAW REPORT.

New Zealand Police Gazette, Volume XXXVIII, Issue 40, 8 October 1913, Page 607

LAW REPORT.

(“Times Law Reports,’’ Vol. xxix, page 700.)

[Court of Criminal Appeal—(Lawrence, Bankes, and Atkin, JJ.) —19th July, 1913.]

Rex v. Frederick Rodley

Criminal Laio Evidence Admissibility Burglary with intent to commit Rape Evidence of Connexion with another Woman shortly afterwards.

The appellant was convicted of having feloniously broken and entered a dwellinghouse with intent to ravish a certain woman therein. At the trial the defences really in issue were that the appellant did not break into the house, that he did not break in with any intention of committing a rape, and that the prosecutrix’s story as to what occurred in the house was not true. Evidence was admitted to the effect that after leaving the house in question the appellant went to another house about three miles distant, where a woman lived alone, and gained access to her bedroom by getting down the chimney and that he had then had connexion with her with her consent.

Held, That the evidence was improperly admitted, and that as the Court could not say that the jury might not have been influenced by it, the conviction must be quashed.

This was an appeal against conviction. Mr. Langman appeared for the appellant; and Mr. Samson appeared for the Crown.

Tne appeal was heard on the 30th June, and at the conclusion of the arguments judgment was reserved. The facts of the case appear in the judgment, which Mr. Justice Bankes read this morning as follows : The appellant was tried at the last Carmarthen Assizes before Mr. Justice Coleridge on an indictment which charged him with having on the 20th April last in the night-time burglariously broken and entered the dwellinghouse of John Jones with intent to commit a felony, that is to say, with intent to ravish one Annie Gwendoline Jones. It appeared from the evidence given at the trial for the prosecution that Annie Jones was living alone with her father in a cottage, and that on the night in question she heard a noise in the house between twelve and one in the morning; that she got up to see wiiat was the matter and found the appellant coming up the stairs with his cap down over his eyes and face and with his boots off ; that she shouted at him, on which he went downstairs; that she followed him and hit him two blows on the head with a stick; that she then recognized him as a man whom she had known for some years, and who had worked in the neighbourhood ; that she then spoke to him by name, whereupon he sprang at her, knocked the candle out of her hand and seized her, putting his hand over her mouth and foroing her against some boxes; that he pulled up her clothes and told her that if she did not give in to him he would not mind killing her; that she managed to get away from him and get outside the door, when, by the light of the moon, she saw that his trousers were down ; that at this point her father who was lame and infirm came on the scene, and the appellant went away; that upon examination it appeared the appellant had got into the cottage by forcing the back door. The appellant was arrested a few days after the occurrence, when he denied having been at the place at all. Before the magistrates the appellant stated that he called no witnesses and that he had nothing to say. Before the magistrates a woman was called as a witness who deposed to the fact that about two o’clock on the same morning as that deposed to by Annie Gwendoline Jones, the appellant had come to her house where she lived alone, and had gained access to her bedroom by coming down the chimney, and that he had then had connexion with her with her consent. Her house was about three miles from that of Annie Jones.

At the tria before Mr. Justice Coleridge the appellant was defended by counsel, and the course the proceedings took was as follows : The first witness called was Annie Gwendoline Jones. She was cross-examined with a view to establishing that the appellant came into the cottage by her permission and that nothing of the kind suggested by the witness had taken place, and that the appellant had merely “ courted ” her, and that whatever had occurred while she and the appellant were in the kitchen was consented to by her. After the father had been called to corroborate his daughter’s story, the woman to whose house the appellant subsequently went was called. The learned Judge, evidently anticipating an objection to the evidence, addressed the counsel for the prisoner, and the following is an account from the shorthand note of what occurred: —

“ Mr. Justice Coleridge.—Mr. Langman, in regard to this witness’s evidence, it all depends upon what the defence is. Is your defence that he was not there at all ? Mr. Langman.—No. Mr. Justice Coleridge.—ls it your defence that he was drunk? Mr. Langman.—No. Mr. Justice Coleridge.—ls it your defence that she consented ? Mr. Langman.—Yes; he was invited there, that he went there merely to court the girl. Mr. Justice Coleridge.—That she consented ? Mr. Langman.—He never went there to commit the offence. Mr. Justice Coleridge.—Then I shall take this evidence. Mr. Langman.—That there was consent to this extent, that she allowed him to court her. Mr. Justice Coleridge.—The charge is that he attempted to rape her. It would be a defence if she consented. If your defence is that she consented I think it is very open to question whether it would be relevant for reasons which I need not give now. Mr. Langman.—ln view of the prisoner’s statement I am unable to put that defence forward. Mr. Justice Coleridge.— Consent ? Mr. Langman.—Yes, because he never went there with the intention to commit any offence.” The evidence of the woman was then proceeded with. The appellant’s counsel now contends that the woman’s evidence ought not to have been admitted, and that the conviction cannot stand. Of recent years the question as to the admissibility upon a criminal trial of evidence of the commission by the aocused of a previous or subsequent offence has been frequently before the Courts, and as these decisions have a direct bearing upon the present case it may be convenient to collect together in one report the various rules which have been formulated by which the admissibility of such evidence may be tested. In Rex v. Mean (21 The Times L.R. 172) Mr. Justice Wills called attention to a fact which is sometimes overlooked, that the laws of evidence are the same in civil and criminal cases. In Rex v. Fisher (26 The Times L.R. 122 ; [l9lo] 1 K.B. 149 at p. 152) Mr. Justice Ohannell puts the point thus : “ The principle is clear, however, and if the principle is attended to I think it will usually be found that the difficulty of applying it to a particular case will disappear. The principle is that the prosecution are not allowed to prove that a prisoner has committed the offence with which he is charged by giving evidence that he is a person of bad character and one who is in the haoit of commiting crimes, for that is equivalent to asking the jury to say that because the prisoner has committed other offences he must therefore be guilty of the particular offence for which he is being tried. But if the evidence of other offences does go to prove that he did commit the offence charged, it is admissible, because it is relevant to the issue, and it is admissible not because, but notwithstanding that, it proves that the prisoner has committed another offence.” As here pointed out by Mr. Justice Ohannell, the governing rule must always be that any evidence to be admissible must be relevant to the issue.

The most recent decisions which lay down rules by which the relevancy of evidence which tends to prove offences other than those covered by the indictment may be tested are the following: Makin v. Attorney-General for New South Wales (10 The Times L.R. 155 at p. 156; [1894] A.O. 57 at p. 65), where the Lord Chancellor lays down therule in these words : “It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crimes charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.” In Rex v. Bond (22 The Times L.R. 633; [1906] 2 K.B. 389), Mr. Justice Darling, at page 409, and Mr. Justice Bray, at page 417, call attention to the fact that Lord Herschell’s last words quoted above must have been intended to apply only to a defence which is really in issue, and that the words of the Lord Chancellor should be read with that limitation. In the same case Mr. Justice Bray, at page 414, says that “ a careful examination of the eases where evidence of this kind has been admitted shows that they may be grouped under three heads : (1) Where the prosecution seeks to prove a system or course of conduct; (2) where the prosecution seeks to rebut a suggestion on the part of the prisoner of accident or mistake; (3) where the prosecution seeks to prove knowledge by the prisoner of some fact.” In their judgments in this case it is pointed out by several of the learned Judges who formed the majority of the Court that a single prior act of a like criminal nature would in general not be admissible as evidence of a system. In the more recent case of Rex v. Ball [l9ll] App. Cas. page 71) the Lord Chancellor, in speaking of the grounds upon which he held that the evidence there objected to was admissible, says: “ Further evidence

was then tendered to show that these persons had previously carnally known each other and had a child in 1908. The object was to establish that they had a guilty passion towards each other, and that, therefore, the proper inference from their occupying the same bedroom and the same bed was an inference of guilt or—which is the same thing in another way —that the defence of innocent living together as brother and sister ought to fail.” The first ground given by the Lord Chancellor for the admissibility of the evidence suggests an extension of the rules indicated in the cases above referred to ; but the second ground comes within the rule previously indicated that evidence is admissible to rebut a defence really in issue. In summing up to the jury in the present case the learned Judge, in referring to the evidence which is now objected to, puts the case in this way. He says: “Then he (the appellant) goes away, and the next thing that is heard is that hardly a stone’s throw off the farm lives a woman with whom he has already had immoral intercourse. The suggestion of the prosecution is that he is raging with lust, and that being foiled as regards the prosecutrix Miss Jones, he immediately went to gratify his passion upon the woman who he knew would not be unwilling to yield.” Is the evidence objected to admissible upon the ground thus indicated by the learned Judge, or under any of the rules formulated in the cases above referred to ? This Court is of opinion that the evidence is not admissible. At the point in the trial at which the evidence was tendered the defences really in issue were : (1) That the appellant never broke into the house at all; (2) that the appellant did not break into the house with any intention of committing a rape; (3) that the prosecutrix’s story as to what occurred in the house was not true. The evidence which was objected to was not, in the opinion of this Court, relevant to any of those issues, and was not, therefore, admissible to rebut any of the above defences. If the jury believed the evidence of the prosecutrix, the only issue was as to whether in the opinion of the jury the acts of the appellant amounted to an attempt to rape, and whether from his acts the jury would infer that the appellant broke into the house with the intention of committing a rape. In the opinion of this Court upon neither of those issues was the evidence objected to relevant. The conclusion, therefore, arrived at by this Court is that the evidence objected to was not admissible on any ground, and ought to have been rejected. The question then arises whether this is a case in which this Court can take advantage of the proviso to section 4 of the Criminal Appeal Act and say that in spite of the admission of the evidence there has been no substantial miscarriage of justice. Upon this question the Court of Criminal Appeal is always at somewhat of a disadvantage as compared with the Judge who heard the case and who saw the witnesses and was acquainted with the impression made by those witnesses upon the jury. The rule adopted by this Court, however, has been that it will not act upon the proviso in any case in which it appears to them clear that the jury may have been influenced by the evidence wrongly admitted. The Court are unable in the present case and upon the materials before it to say that the jury may not have been so influenced, and their decision, therefore, is that the conviction must be quashed. I only desire to add that there is another indictment against this appellant, and the Court think that he should be tried upon that, and he may make the usual application for bail, and if it is thought to be a proper case bail will be granted to him. He will be tried at tbe next assizes. [Solicitors —The Directors of Public Prosecutions ; the Registrar.]