Hope v R [1909] HCA 6; (1909) 9 CLR 257 (15 March 1909)

HIGH COURT OF AUSTRALIA

Hope Appellant; and The King Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

15 March 1909

Griffith C.J., Barton, O'Connor, Isaacs and Higgins JJ.

Schutt, for the appellant.

Griffith C.J.

The majority of the Court are of opinion that this case falls within that of In re Dillet[1], a decision which has been followed in this Court, and that special leave to appeal should be refused.

Isaacs J.

I regret that I take a different view, and I think that, where it is a case of life or death, nothing in the shape of a technicality should stand in the way of giving a person sentenced to death an opportunity of preserving his life. In R. v. Bertrand[2], Sir John T. Coleridge in delivering the opinion of the Privy Council said:—"The result is, that any application to be allowed to appeal in a criminal case comes to this Committee labouring under a great preliminary difficulty—a difficulty not always overcome by the mere suggestion of hardship in the circumstances of the case; yet the difficulty is not invincible. It is not necessary, and perhaps it would not be wise, to attempt to point out all the grounds which may be available for the purpose; but it may safely be said that when the suggestions, if true, raise questions of great and general importance, and likely to occur often, and also where, if true, they show the due and orderly administration of the law interrupted, or diverted into a new course, which might create a precedent for the future; and also where there is no other means of preventing these consequences, then it will be proper for this Committee to entertain an appeal, if referred to it for its decision." In re Dillet[3], was a case in which the rule was laid down, but there leave to appeal was granted because the prisoner was prejudiced and so the actual decision supports the present application. In the last case before the Privy Council: Tshingumuzi v. Attorney-General of Natal[4], leave was refused on the authority of In re Dillet[5]. That was a case of disputed evidence and of the proper inference to be drawn from the evidence, and the Court said:—"It is impracticable to suppose that in such a case ... this Board can judge better than those who have heard the witnesses themselves."

Now what is the present case? It is a case where a woman was charged with the murder of another woman by an illegal operation. The Doctor who made a post mortem examination of the body of the deceased said that death was caused by a perforation extending through the wall of the womb into the surrounding tissue in an upward and outward direction. He then went on to describe the state of the organ, and he said that in his opinion the condition was produced by the introduction into the uterus of some instrument, and that an instrument like a catheter, which was produced, would cause the perforation. A good deal, therefore, turns upon the nature of the instrument which probably caused the perforation. Now in the written statements made by the deceased there is no description of the instrument whatever, except that it was a tube. The nature, shape, and substance are left all undetermined. That is so also with regard to the other written statement. The only place in which I can see any reference to the nature of the instrument is in the oral statement, alleged by the witness Jenkins to have been made to him by the deceased, that the instrument was like a syringe with the end turned up. That is a very important statement and, in my opinion, extremely pertinent to the question whether the perforation in an upward and outward direction was caused by the prisoner or by some other person, for the deceased left the prisoner's house some time afterwards. If that oral evidence was not admissible there was imminent peril of the jury's minds being affected by that testimony, and I think that in that case substantial injustice would have been done. This is not a technicality. The technicality, I think, is in not giving effect to it. The position of a prisoner on trial for her life is not one in which she should be tied down by the most rigid rules of procedure.

Now, there is a considerable body of authority to be found in Taylor on Evidence, 10th ed., p. 513, and the cases there referred to, which, as far as it goes, is in support of the position that, where a declaration is made by a dying person and is reduced to writing and signed, that written declaration is the one intended by him to be used. It is the final revised statement to which he wishes to pin his faith and to pledge his dying breath. Therefore in this anomolous state of affairs, where an unsworn statement, taken without the accused having the smallest opportunity of testing it by cross-examination, is admitted in evidence, the law regards its admission, as was said by Byles J. in R. v. Jenkins[6], "with scrupulous, and I had almost said with superstitious, care." I feel that in this case, which is one of life and death, it would be right to allow the accused to have a chance of having the matter argued, and I therefore am unable to concur in the judgment of the Court.

Higgins J.

I concur in the decision of the Court. I would like to say with reference to one of the points raised by Mr. Schutt, as to the evidence of what was verbally said not being admissible if what was said has been committed to writing, that the case of R. v. Sheridan[7] appears to me to be conclusive. That was a prosecution for breach of a law about holding meetings in which the accused was charged with having read out a certain resolution at a meeting. The prosecution proposed to give evidence of what was said in reading out the resolution, and objection was taken. The Judges held that what was said was admissible. Lord Chief Justice Downes said:—"I do not feel that this objection to the evidence has any weight. The paper alluded to is not that kind of instrument which should, in the first instance, be produced, or accounted for, before evidence of an inferior nature can be given. The objection is founded upon a presumption that there is a document of an authentic nature, showing what the proceedings were, and that it is not competent to give evidence of those proceedings, without producing that document. The evidence offered is to show the transactions of the meeting; what was said by the one and the other; in short, the general conduct of the assembly. This cannot be rejected because there was some person there who took notes of what passed. Possibly, that person may have a more accurate account; but it goes no further than that." The other Judges concurred.

Leave to appeal refused.

Solicitors, for the appellant, P. J. Ridgeway.

[1] 12 App. Cas., 459.

[2] [1867] EngR 20; L.R. 1 P.C., 520, at p. 530.

[3] 12 App. Cas., 459.

[4] (1908) A.C., 248, at p. 250.

[5] 12 App. Cas., 459.

[6] L.R. 1 C.C.R., 187, at p. 193.

[7] 31 How. St. Tr., 543, at p. 673.