Supreme Court of Canada
The King v. Barbour, [1938] S.C.R. 465
Date: 1938-11-15
His Majesty The
King Appellant;
and
Robert Barbour Respondent.
1938: October 17; 1938: November 15.
Present: Duff C.J. and Rinfret, Davis,
Kerwin and Hudson JJ.
ON APPEAL FROM THE SUPREME COURT OF NEW
BRUNSWICK, APPEAL DIVISION
Criminal law—Evidence—Trial for
murder—Evidence of previous quarrels between accused and deceased with
accompanying assaults by accused —Admissibility.
The accused (respondent) was convicted at
trial of the murder of H., a girl
living near his home and with whom he had been “keeping company” for some time.
On March 30, “1938, accused and
H. were seen together and later on that day H. was found suffering from
injuries from which she died. Evidence was given of statements by accused,
after the alleged attack that he had killed H. with a hammer that he was “awful
jealous of her,” that he took her home the night previous and “afterwards she
ran out with another fellow.” Evidence was given, against objection, of
previous quarrels between accused and H. and accompanying assaults upon H. by
accused, one such incident occurring shortly before Christmas, 1937, one in January, 1938, and one about a week before said
March 30, 1938. The Appeal
Division of the Supreme Court of New Brunswick (Harrison J. dissenting)
directed a new trial, on the ground that evidence of previous assaults by
accused upon H. was improperly admitted (13
M.P.R. 203). The Crown appealed.
Held (Kerwin
and Hudson JJ. dissenting): The appeal should be dismissed.
Per Duff C.J.,
Rinfret and Davis JJ.: The Crown’s case was that accused had killed H. in a fit
of jealous passion aroused by her conduct with another man. The evidence
definitely negatived any connection between this other man and the earlier
incidents now in question; and wholly failed to present any facts from which
the jury could properly infer that there was any connection of such earlier
incidents with accused’s objection to H.’s associating with other men; or that
such incidents were the result of enmity or ill-will on accused’s part; they
were transient ebullitions of annoyance and anger which immediately passed away
and led to nothing; in their physical characteristics they had no real
similarity to the attack of March 30. Where
there are acts seriously tending, when reasonably viewed, to establish motive
for a crime, evidence of such acts is admissible, not merely to prove intent,
but to prove the fact as well; but it is important that courts should not slip
into a habit of admitting evidence which, reasonably viewed, cannot tend to
prove motive or to explain the acts charged, merely because it discloses some
incident in the history of the relations of the parties. The incidents in
question did not appear to be such that they could reasonably be regarded as
evidencing feelings of enmity or ill-will which could have been the motive
actuating the homicide charged. A quarrel might, in its incidents or
circumstances or in its relation to other facts in evidence, have such a
character as
[Page 466]
to entitle the jury to infer motive and
intention and state of mind, even in the absence of verbal declaration; while,
on the other hand, such an occurrence or series of occurrences might be so
insignificant as to leave nothing for the jury to interpret and to afford no
reasonable basis for a relevant inference adverse to the accused. The facts in
each case must be looked at, and if, reasonably viewed, they have no probative
tendency favourable to the Crown or adverse to the accused in respect of the issue
joined between them, the evidence should be excluded.
Rex v. Bond,
[1906] 2 K.B. 389, at 397, 401, Rex v. Ball, [1911] A.C. 47,
at 68, and other oases, referred to. Theal v. The Queen, 7 Can.
S.C.R. 397, on its facts has no resemblance to the present case.
Per Kerwin J.
(dissenting): The intent of accused was directly in issue (Cr. Code, s.
259 (b) referred to), and it was for the Crown to adduce evidence
thereon. There was a definite connection between the accused’s acts
accompanying said quarrels and the issue as to accused’s intent in inflicting
the injuries on March 30; the evidence of those acts was relevant to that issue
as indicating a jealous disposition on accused’s part and as evidence of his
motive. The jury was entitled to take those matters into consideration in
conjunction with the other evidence, and the probative value was not so slight
that the evidence as to any of the quarrels was inadmissible.
Rex v. Bond,
[1906] 2 K.B. 389, at 397, 400, 401, Rex v. Ball, [1911] A.C.
47, at 68, Rex v. Shellaker, [1914] 1 K.B. 414, Rex v. Chomatsu
Yabu, 5 West. Australian L.R. 35, and other cases, referred to.
Per Hudson J.
(dissenting): The onus was on the Crown to establish that accused killed H. and
that he did it with malice. To satisfy that onus, recourse to circumstantial
evidence was necessary. Evidence of the previous relations of the parties,
including evidence of their quarrels and how they then behaved towards each
other, was relevant on the issue of malice as that issue is explained in Woolmington
v. The Director of Public Prosecutions, [1935] A.C. 462, at 482. The
evidence being relevant to an issue, it should not be excluded merely on the
ground that it disclosed some other crime or offence of a similar nature
committed by accused (Makin v. Attorney-General of New South Wales, [1894]
A.C. 57; Rex v. Bond, [1906] 2 K.B. 389).
APPEAL by the Attorney-General of New
Brunswick from the judgment of the Supreme Court of New Brunswick, Appeal
Division,
allowing (Harrison J. dissenting) the accused’s appeal against his conviction
for murder and ordering a new trial, on the ground that evidence given at the
trial of previous assaults by the accused upon the deceased was improperly
admitted. The material facts of the case are sufficiently stated in the
judgments now reported; the evidence is dealt with in some considerable detail
in the judgment of Kerwin J. (dissenting). The appeal to this Court was
dismissed, Kerwin and Hudson JJ. dissenting.
[Page 467]
E. B. MacLatchy for
the appellant.
P. J. Hughes K.C. for the
respondent.
The judgment of the majority of the Court (The
Chief Justice and Rinfret and Davis JJ.) was delivered by
The Chief
Justice.—This appeal, in my view of it, does not raise
any question of general principle. As Lord Dunedin said in Thompson v. The
King:—
the law of evidence in criminal cases is
really nothing more than a set of practical rules which experience has shown to
be best fitted to elicit the truth as to guilt without causing undue prejudice
to the prisoner.
It must not be forgotten that the jury are not
engaged in a scientific investigation. They are trying an issue of fact between
the Crown and the prisoner; and the court must see that the practical rules,
the purpose of which is thus explained by Lord Dunedin, are duly observed.
Nobody disputes that it is of the utmost
importance to
a prisoner charged with an offence * * *
that the facts laid before the jury should consist exclusively of the
transaction which forms the subject of the indictment which alone he can be
expected to come prepared to answer. It is, therefore, a general rule that the
facts proved must be strictly relevant to the particular charge and have no
reference to any conduct of the prisoner unconnected with such charge.
I am quoting from the judgment of Mr. Justice
Kennedy in Rex v. Bond.
While, as already observed, I do not consider
any question of general principle is really involved in this case, I do not
suggest for a moment that assistance in applying well known principles to the
facts may not be gained by consulting the authorities.
In Rex v. Ball two people were indicted upon a charge of
incest. At the trial, evidence was admitted of previous acts of intercourse and
of the fact that they had been living in relations akin to those of husband and
wife. The House of Lords held these acts were admissible as tending to
establish the existence of a guilty passion at the very time the acts charged
were alleged to have been committed on the ground that
their passion for each other was as much
evidence as was their presence together in bed of the fact that when there they
had guilty relations with each other.
[Page 468]
In this Court, counsel for the Crown, who had
conducted the Crown’s case at the trial and who presented his argument with
conspicuous fairness, sustained the admissibility of the evidence objected to
on the strictly narrow ground that it was relevant to the issue of intent and
upon that alone. He expressly disclaimed the suggestion that the quarrels of
which evidence was given proceeded from hostility or enmity, or tended to show
the existence of such feelings. In his factum he contends that evidence of the
relations of the parties, friendly or unfriendly, is admissible without
qualification; but on the oral argument his contention was explicitly limited
as above explained and, it should be noticed, that this limitation is logically
inconsistent with any contention that the evidence tended to establish feelings
of hostility or malignity; a contention which, as observed, he explicitly
refused to adopt. The existence of such feelings would, as we shall see, be
relevant not merely in respect of intent, but in respect of the fact as well.
The evidence adduced by the Crown was inconsistent with the notion that
anything like a feeling of ill-will or malignity actuated these quarrels; and,
indeed, as the learned Chief Justice of New Brunswick intimates, they were
transient ebullitions of annoyance and anger on the part of the accused which
immediately passed away and led to nothing.
The Crown’s case was in truth that the accused
had killed the deceased in a fit of jealous passion aroused by her conduct with
another man. There is nothing in the evidence to show that the accused was
aware even of the existence of this man before the last of the incidents in question,
although he had first become acquainted with the deceased, according to his own
evidence, about two weeks before that. The evidence definitely negatives any
connection between him and the earlier incidents. It seems reasonable to infer
from counsel’s opening that he expected to connect all the incidents now in
question with the accused’s objection to the victim’s associating with other
men; but the evidence wholly fails to present any facts from which the jury
could properly infer that there was any such connection. It is true there is a
general statement, elicited in re-examination from one of the witnesses by
leading questions, to the effect that the accused objected
[Page 469]
to her going with other men and that he was a
little “jealous” of her. But there is no evidence which would have entitled the
trial judge to instruct the jury that they might ascribe these quarrels to any
such feeling. Indeed, as regards the first of the quarrels, the evidence of the
witness for the Crown who related the facts is explicit that the quarrel had a
totally different origin. There is no suggestion in the record, it should be
added, from the beginning to the end of the trial that these incidents were the
result of enmity or ill-will on the part of the accused.
If you have acts seriously tending, when
reasonably viewed, to establish motive for the commission of a crime, then
there can be no doubt that such evidence is admissible, not merely to prove
intent, but to prove the fact as well. But I think, with the greatest possible
respect, it is rather important that the courts should not slip into a habit of
admitting evidence which, reasonably viewed, cannot tend to prove motive or to
explain the acts charged merely because it discloses some incident in the
history of the relations of the parties.
In the course of the argument in Rex v. Ball
(1), Lord Atkinson said:—
Surely in an ordinary prosecution for
murder you can prove previous acts or words of the accused to shew he
entertained feelings of enmity towards the deceased, and that is evidence not
merely of the malicious mind with which he killed the deceased, but of the fact
that he killed him. You can give in evidence the enmity of the accused towards
the deceased to prove that the accused took the deceased’s life. Evidence of
motive necessarily goes to prove the fact of the homicide by the accused, as
well as his “malice aforethought” * * *
Of course, a much wider latitude is allowed the
accused, who may adduce any evidence, of good character for example, tending to
show, not only that it was not likely that he committed the crime charged but
that he was not the kind of person likely to do so.
In Rex v. Ball, Lord Loreburn quoted the following passage
from the judgment of Kennedy J. in Rex v. Bond:—
The relations of the murdered or injured
man to his assailant, so far as they may reasonably be treated as explanatory
of the conduct of the accused as charged in the indictment, are properly
admitted to proof as integral parts of the history of the alleged crime for
which the accused is on his trial.
It is most important to attend to the
qualification “so
[Page 470]
far as they may reasonably be treated as
explanatory of the conduct of the accused as charged in the indictment.” It
explains, I think, why Cresswell J. and Williams J. in Mobbs’ case were not satisfied of the admissibility of
evidence of conduct of the accused directed towards the deceased eleven days
before the date of the alleged murder in the absence of some accompanying
declaration, even as tending to prove malice.
In Theal v. The Queen, counsel for the Crown in opening (p. 399)
stated he would prove systematic ill-treatment culminating in the final assault
which was the immediate cause of the victim’s death. The previous acts of
violence were held admissible as tending to establish intent and as in the same
category as deliberate menaces or threats tending to prove malice and intent (per
Ritchie C.J. at p. 406). The judgment must be interpreted in light of the
facts and especially of the character of the previous assaults proved and the
threats accompanying them. The case has no sort of resemblance to that before
us.
By way of summary, it may perhaps be added that,
first of all, the incidents in question do not appear to be such that they
could reasonably be regarded as evidencing feelings of enmity or ill-will which
could have been the motive actuating the homicide charged. I do not doubt that
a quarrel might in its incidents or circumstances, or in its relation to other
facts in evidence, have such a character as to entitle the jury to infer motive
and intention and state of mind, even in the absence of verbal declaration;
while, on the other hand, such an occurrence or series of occurrences might be
so insignificant as to leave nothing for the jury to interpret and to afford no
reasonable basis for a relevant inference adverse to the accused. The facts in
each case must be looked at, and if, reasonably viewed, they have no probative
tendency favourable to the Crown or adverse to the prisoner in respect of the
issue joined between them, it is the duty of the court to exclude the evidence.
The responsibility of the judge in such cases is a grave one if there is any
risk that the evidence tendered may prejudice the prisoner.
Having regard to the character of the case made
at the trial, the course of the trial, and the position taken by
[Page 471]
counsel for the Crown in this court, it would be
unsafe to set aside the order for a new trial pronounced by the Supreme Court
of New Brunswick on any such hypothesis as to the origin and nature of these
incidents.
For the same reason it would be equally unsafe
to proceed upon the proposition that evidence of these incidents was admissible
as relevant to the issue of intent as evidence of similar acts calculated to
negative accident or mistake or tending directly to prove that the acts of the
30th of March were committed with the intent to kill. In view of the relations
of the parties it is questionable if what occurred on any one of the occasions
dealt with by Mr. Justice Harrison amounted even technically to an assault; in
any event, the Crown, as already observed, refused to impute to the accused
ill-will and there is no suggestion that there was any intention to harm; in
their physical characteristics there is no real similarity between these
quarrels and the murderous attack of March 30th.
Nor is there any evidence from which the jury
could reasonably ascribe the conduct of the accused on these isolated occasions
to the motive alleged to have prompted the acts of March 30th—resentment
against the association of the deceased with other men.
The appear should be dismissed.
Kerwin J. (dissenting)—Robert Barbour was convicted of having murdered
Margaret Harris on March 30th, 1938. The Appeal Division of the Supreme Court
of New Brunswick
directed a new trial on the ground that evidence given that the accused had
previously assaulted the deceased was improperly admitted. Mr. Justice Harrison
dissented and the Attorney-General now appeals to this Court upon the question
of law upon which such dissent was based.
Upon an examination of the residuum of the
evidence there would appear to be no dispute as to the following facts. The
accused and Margaret Harris had been “keeping company” for some time. (I refer
immediately to what transpired on the evening of March 29th, 1938, because
while there was a suggestion that the evidence on the point is of a “previous
assault,” it was not so urged
[Page 472]
before us by counsel for the accused and in fact
I do not understand how that proposition could be seriously advanced). On the
evening, then, of March 29th the accused brought Margaret to her home and
shoved her through the doorway, saying to her mother, “keep her home, she is
running around too much.” On March 30th, the accused and Margaret were seen
together,—the latter sitting on the former’s knee and the accused crying.
Shortly thereafter the girl was discovered in the same house bleeding and
suffering from injuries inflicted by a hammer. The same day the accused went to
the shire gaol and gave himself into custody. Upon arrival at the buildings he
met Napoleon Leger and said to him: “My name is Robert Barbour, son of John
Barbour. * * * I have just killed my lady friend.” After being incarcerated, he
made a certain statement in the presence of two prisoners. One of them, Wilmot,
gives the statement as follows: “I just committed murder about ten minutes ago.
* * * Yes, that is right—I just killed my girl with a hammer.” Upon Wilmot
remarking: “How in the name of God did that happen?” the accused continued,
according to Wilmot: “I was awful jealous of her— I took her out last night— I
took her home— Afterwards she ran out with another fellow— She came over to the
house to-day and I killed her.” The other prisoner, Darbison, testified: “He (meaning
the accused) said he had killed a girl—had hit her on the head with a hammer. *
* * He said he took her home the night previous and he was terribly jealous of
her.” As a result of the injuries sustained on March 30th, Margaret died on
April 15th.
The issues to be determined by the jury were
whether the accused had inflicted the injuries from which the girl died, and
under clause (b) of section 259 of the Code, whether he had meant
to cause her any bodily injury which was known to him to be likely to cause
death and was careless whether death ensued or not. That is, the intent of the
accused was directly in issue and the responsibility devolved upon the Crown to
adduce evidence on that point. Evidence as to any motive the accused might have
had in inflicting the injuries spoken of in the Code was directly
relevant to that issue of intent. While the Crown is not obliged to adduce
evidence of motive, the presence
[Page 473]
or absence of motive may be of very considerable
importance. If the evidence before the jury disclosed merely that the girl had
received injuries and that the accused had caused those injuries, the case
would have been left in a very unsatisfactory position, and hence it was that
evidence of what the accused said to Leger and to the two prisoners was
tendered, not merely to indicate that the accused had inflicted the injuries
but as to his motive in so doing.
How, then, does the matter stand with reference
to the evidence of previous assaults which the Court of Appeal has determined
was improperly admitted? In his opening address to the jury, after stating that
the accused had been keeping company with Margaret Harris and after referring
to one Robert MacPherson, who “comes into the scene on March 29th,” and after
referring to the evidence to be adduced that on the evening of that day the
accused had pushed Margaret through the doorway saying something to this
effect: “Keep her home. She is running around too much,” Crown counsel
continued, according to the transcript on page 40 of the Appeal Case, as
follows:—
Now there is evidence also to be submitted
here that the accused and his girl friend, sweetheart if you like, have not
been getting along very well lately. Evidence to show that there had been some
quarrelling. Now what the reasons for the quarrels are you will have to have
some evidence before you what was bring that about. What was the trouble. What
he was crying about that day. Why his mysterious movements on the day before
and why his mysterious actions in the house that afternoon of the fatal day,
March 30th.
During the course of the trial this evidence as
to quarrelling was adduced:—
(1) The evidence of Frances Barbour, a sister of
the accused. After the objection of counsel for the accused had been
over-ruled, the questions and answers proceeded:
Q. I would ask you the question, prior to
March 30th shortly prior to March 30th, did you ever see Robert Barbour, your
brother, and Margaret Harris quarrelling?
A. Yes.
Q. About how long before March 30th?
A. About a week.
Q. Where was this quarrel you saw? Where
did it take place?
A. In the Barbour house.
Q. In your own house?
A. Yes.
Q. In what room in your own house?
A. In the living room.
[Page 474]
Q. Tell us what you saw on that occasion?
A. Margaret and Robert were sitting down, they
were quarrelling. They were talking about something. I didn’t hear. Robert
jumped up and started hitting Margaret.
Court: He jumped up?
A. Yes.
Court: And did what?
A. Hit Margaret.
Court: He hit Margaret?
A. Yes, Margaret went into the bed room and
Robert went out.
Q. Margaret went into the bed room?
A. Yes.
Q. And Robert went out doors?
A. Yes.
Q. How many times did he hit her and how
did he hit her?
A. He hit her with his hand.
Q. Do you know whether it was his clenched
hand or open hand?
A. I didn’t take notice.
Q. What stopped the quarrel?
A. My sister-in-law stopped it.
Q. Your sister-in-law?
A. Yes.
Q. That is Mrs. Richard Barbour?
A. Yes.
Q. How did she stop them?
A. Came and parted them.
Q. What did you do yourself in that case?
A. I called for Mrs. Galley.
Q. Where is Mrs. Galley?
A. In the same building we are in.
Q. In the rear part of your house, is that
right?
A. Yes.
In cross-examination the witness was asked and
answered as follows:—
Q. You say your brother Robert, the
accused, and Margaret Harris went out together a great deal?
A. Yes.
Q. As a matter of fact, he was very fond of
her?
A. Yes.
* *
*
Q. Isn’t it true that Margaret Harris was
inclined to tease Robert?
A. Yes.
Q. You said yes?
A. Yes.
Q. Do you know whether or not she was teasing
him on the occasion you spoke of, that you were telling Mr. McLatchey of?
A. No, she was not.
(2) The evidence of Mrs. Richard Barbour, a
sister of Margaret Harris, which on this point appears at pages 160 to 165 of
the Case. After an objection had been overruled, this witness testified that
she had seen the accused and Margaret quarreling on three occasions. The first
was shortly prior to the preceding Christmas; the accused wanted
[Page 475]
Margaret to go to her own home and kicked her;
the witness stopped this quarrel. The next occasion was about January of 1938
and while the witness could not state the reason for the quarrel, she saw the
accused strike Margaret once or twice over the shoulder with his open hand; the
parties to the quarrel stopped of their own accord. The third occasion was a
week before March 30th and is the same one already spoken of by Frances
Barbour. On cross-examination the witness admitted that the accused and
Margaret had been keeping company for a long time; that they seemed to be fond
of each other; that Margaret was inclined to tease the accused from time to
time “for fun,” and that they would have “spats”; that when they were
quarrelling on the two latter occasions spoken of by this witness “it would be
one of those spats”; that they would generally “make up right after and go on
as they had before”; and that on the first occasion spoken of by the witness,
the accused wanted Margaret to go to her own home so that he might go to bed to
be rested for his work in the morning. On re-examination the following
occurred, as reported on page 184 of the Case:—
Q. Was Robert jealous about Margaret?
A. He appeared to be a little.
Q. Did he object to her going around with
other men?
Mr. Hughes:
Just a moment—I object.
Question allowed.
A. Yes, he did.
Cross-examination on these questions—Mr.
Hughes.
Q. Mrs. Barbour, you said Robert appeared
to be a little jealous of Margaret?
A. Yes.
Q. He seemed, as you have already said, to
be very fond of her?
A. Yes.
Q. And you thought he wanted to marry her,
I take it? Mr. McLatchey: She
didn’t say that.
Q. That would be correct, would it not?
A. Well, I don’t know.
Q. Well, that was the impression you
gathered from their relationship, was it not?
A. Yes.
Q. And that if he thought he was likely to
lose her he appeared to be jealous, that is what you thought?
A. Yes, sir.
Q. Did he not appear to be trying to
protect her?
A. I don’t know.
Q. Have you not seen indications of that?
A. No, I have not.
[Page 476]
Q. Did he not try to keep her from going to
places that he thought she should not go to?
A. Well, I don’t know anything about that.
(3) The evidence of John Harris, Margaret’s
father, who testified that in January of 1938 he had had a conversation with
the accused and had told the accused “Margaret had two black eyes and I asked
him what was the meaning of it and he did not give me any answer.” The witness
testified further that on March 29th “he (the accused) told me, he said ‘I will
never lay hands on Margaret again’ and he made a promise and I took him up on
it and we shook hands on it.” On cross-examination the witness testified that
the accused had not admitted that he (the accused) was responsible for the
blackening of Margaret’s eyes.
The only reference in the judge’s charge to the
jury as to the accused having struck or kicked Margaret is at page 450 of the
Case, and it was introduced in connection with the judge’s instructions on the
question of the accused’s insanity, which had also been raised. The learned
judge had discussed this question at some length and then said:—
Let us see what turns here:
We have been told that the accused and this
girl were very friendly. I do not know whether they were lovers or not, but
they had been going around together for three or four years. There is evidence also
that he had kicked her. There is evidence that he hit her. There is evidence
that on the 29th of March he had, that before Margaret Harris was found wounded
or injured in the Barbour house, that he had told Margaret’s father that he
wouldn’t ever lay a hand on her again. So that you compare that with the
situation I have given you, of a father coming in and telling you that he had
killed his child.
The judge immediately continued with his
instruction upon the question of insanity. At page 444 he is reported to have
spoken “of the reference to the fact that Margaret was teasing the accused” and
to have pointed out that it appeared to him that it was introduced for no
reason except to suggest provocation, as to which the judge intimated there was
no evidence.
I have mentioned in detail the only evidence of
previous assaults and have shown how that evidence was introduced and led at
the trial. The manner in which it was dealt with by the trial judge and Crown
counsel cannot, of course, cure the defect, if in truth it was not proper to
place it before the jury, as the objection is to its admissibility and not to
the weight to be attached to
[Page 477]
it. However, it is apparent that it was never
suggested that such evidence was submitted for the purpose of showing the
accused had committed another offence, or that he was a person who was likely
to mean to cause to the deceased an injury known to the accused to be likely to
cause death, or as evidence of similar acts; but on the ground that it was some
evidence of a motive,—particularly when considered in conjunction with the
evidence as to what transpired on the evening of March 29th and the evidence as
to the statements made by the accused on March 30th to Leger and the two
prisoners.
On the argument the case of Rex v. Bond was relied upon by counsel for the
respondent and we were particularly pressed with the applicability of the
judgment of Lord Justice Kennedy. In Rex v. Ball, counsel for the accused, during the
course of his argument before the House of Lords, referred to that part of the
judgment of Lord Justice Kennedy at page 397 in the Bond case,
but later the Lord Chancellor quoted another part of the same judgment at page
401:—
The relations of the murdered or injured
man to his assailant, so far as they may reasonably be treated as explanatory
of the conduct of the accused as charged in the indictment, are properly
admitted to proof as integral parts of the history of the alleged crime for
which the accused is on his trial.
Upon counsel remarking:—
That is because, in murder, you have the
act, and then the question of what was in the mind of the assailant.
Lord Atkinson then interposed:—
Surely in an ordinary prosecution for
murder you can prove previous acts or words of the accused to shew he entertained
feelings of enmity towards the deceased, and that is evidence not merely of the
malicious mind with which he killed the deceased, but of the fact that he
killed him. You can give in evidence the enmity of the accused towards the
deceased to prove that the accused took the deceased’s life. Evidence of motive
necessarily goes to prove the fact of the homicide by the accused, as well as
his “malice aforethought,” inasmuch as it is more probable that men are killed
by those who have some motive for killing them than by those who have not.
It is true that the circumstances in the Ball
case were
peculiar but in The King v. Shellaker Sir Rufus Isaacs, Lord Chief Justice of
England, in delivering the judgment of the Court of Criminal Appeal, which
included Channell,
[Page 478]
Bray, Avory and Lush, JJ., pointed out that the Ball
case
followed a long line of authorities of which Reg. v. Ollis was one. The rule propounded by Channell
J. in the latter was adopted wherein he stated that in such cases evidence of
other transactions is admitted not for the purpose of showing that the prisoner
committed other offences but for the purpose of showing that the transaction in
question was done with the intent to defraud or with guilty knowledge, as the
case may be. The Ollis case is
again referred to, as well as the Shellaker case, in Rex v. Love-grove, another judgment of the Court of Criminal
Appeal (the Earl of Reading, L.C.J., Salter and Acton JJ.) delivered by the
Lord Chief Justice.
These decisions show, if any authority be
needed, that the Bond case, and
particularly the judgment relied upon, cannot be taken as setting forth the
only circumstances under which prior offences of an accused may be disclosed on
his trial. In fact, Lord Justice Kennedy enunciated several general rules,
i.e., (1) “evidence must be confined to the point in issue” and (2) “the facts
proved must be strictly relevant to the particular charge and have no reference
to any conduct of the prisoner unconnected with such charge” (page 397). As to
these rules, it will be noticed that the Lord Justice refers to the “point in
issue” and to “conduct of the prisoner unconnected with such charge,” and later
at page 400 points out that it is not easy to say whether a particular case
falls within the (second) rule or within the apparent exceptions.
In Reg. v. Mobbs, it is reported in (1853) 6 Cox C.C. 223
and in 17 J.P. 713, that Baron Cresswell and Williams J., in a case where
evidence was offered of a prior assault, felt so uncertain about the matter
that they decided not to admit the evidence. These reports are very meagre but
in 38 Central Criminal Court Reports, 651, which purports to give the
proceedings as they occurred, no reference is made to a ruling by the judges.
From this report it appears that upon counsel for the accused objecting to the
question, “What did you then see the prisoner do to his wife?” and stating that
such evidence did not
[Page 479]
explain the difference between murder and
manslaughter, which was the only argument open to him, Mr. Bodkin for the Crown
indicated “that he did not purpose to prove any expressions accompanying the
acts but only the acts themselves; that it was not consistent with his duty to
omit all mention of the matter, but having done so, he would now withdraw the
question.”
Whichever report of Reg. v. Mobbs is correct, it is apparent that the case
cannot be considered a precedent to apply to other cases where, either a prior
act of the accused is accompanied by a statement of his, or where there are other
acts of his that a jury might consider in conjunction with such prior act. And
this view was taken in Rex v. Chomatsu Yabu. It was there held, on an appeal from a
conviction of a man for having murdered a Japanese woman, that evidence was
rightly admitted that at a date some time earlier than the date of the alleged
offence the accused was in a yard behind the house of the woman and in answer
to her accusation admitted that he had broken up her furniture. McMillan J.
stated:—
I think if facts can be found from which
the jury can properly infer what the motive and intention and state of mind of
prisoner was, that those facts are as properly brought before them as any
declaration on the part of the prisoner would have been.
At the famous trial of William Palmer, 1856, one question was as to whether the
accused administered the poison. After referring to the practice in some
countries of allowing a probability to be raised that an accused has committed
an offence by showing that he has committed other offences, Lord Campbell
instructed the jury that by the law of England every man is presumed to be
innocent and that it allowed his guilt to be established only by evidence
directly connected with the charge. He then referred to circumstantial evidence
leading to the conclusion of guilt, stating that with respect to the alleged
motive “it is of great importance to see whether there was a motive for
committing such a crime” and concluded that the adequacy of the motive was of
little importance.
[Page 480]
In the case at bar, it is doubtful, in my
opinion, in view of the relations between the accused and Margaret Harris, if
the striking and kicking may be termed offences in any sense of the word. In
any event, for the reasons already indicated, I believe there was a definite
connection between those acts, accompanying, as they did, the quarrels
mentioned, and the issue as to the accused’s intent in inflicting the injuries
on Margaret Harris on March 30th, 1938. The evidence of these acts was relevant
to that issue as indicating a jealous disposition on the part of the accused
and as evidence of the accused’s motive.
In connection with the four episodes, it is well
to bear in mind the relationship between the Harris and Barbour families and
just who the witnesses were who testified. Mrs. Richard Barbour was not only
the sister of Margaret Harris but was also married to a brother of the accused.
Frances Barbour was a sister of the accused; and John Harris, besides being the
father of Margaret Harris, was, of course, the father-in-law of his other
daughter’s husband. As to the first occasion, Mrs. Richard Barbour did testify
on cross-examination, as has been noted, that the accused wanted Margaret to go
to her home so that he might go to bed to be rested for his work. In view of
the fact that this testimony was given by answering “Yes” to a series of
suggestions by counsel for the accused (put by him with perfect propriety), the
jury would be entitled to weigh such answers and give such effect to them, if
any, as they saw fit. The jury was entitled to take all these matters into
consideration in conjunction with the other evidence and I cannot agree that
the probative value is so slight that the evidence as to any of the quarrels
was inadmissible. The trial judge admitted the evidence and, in my opinion,
should not have ruled otherwise.
Notwithstanding that the appellant is restricted
upon his appeal to the question of law upon which there has been dissent in the
court below, it was submitted on behalf of the accused that the latter is not
to be deprived of the new trial granted him unless this Court is satisfied, in
making such order “as the justice of the case requires” (section 1024,
subsection 1), that no error exists in connection with any of the other grounds
taken by the accused before the Court of Appeal. We accordingly heard
[Page 481]
argument on all questions that counsel for the
accused desired to raise. It is unnecessary for me to express an opinion on any
of these questions or on the point of jurisdiction, since the majority of the
Court have come to the conclusion that the appeal of the Attorney-General
fails.
Hudson J. (dissenting)—The
only point: on which there was dissent in the court below is that “there was
error in admitting the evidence of previous assaults by the accused upon
Margaret Harris.”
The prisoner was charged with murder and pleaded
not guilty. The duty of the Crown in such a case is stated by the Lord
Chancellor, Lord Sankey, in the case of Woolmington v. The
Director of Public Prosecutions, as follows:—
When dealing with a murder case the Crown
must prove (a) death as the result of a voluntary act of the accused and
(b) malice of the accused. It may prove malice either expressly or by
implication. For malice may be implied where death occurs as the result of a
voluntary act of the accused which is (i) intentional and (ii) unprovoked. When
evidence of death and malice has been given (this is a question for the jury)
the accused is entitled to show, by evidence or by examination of the circumstances
adduced by the Crown that the act on his part which caused death was either
unintentional or provoked.
The onus then was on the Crown to establish that
the prisoner killed the deceased and that he did it with malice. To satisfy
this onus, recourse to circumstantial evidence was necessary. The questions
immediately arose: What were the previous relations between the parties? Were
they friends or otherwise? If friends, how friendly? How did they normally
behave towards each other? What were their normal acts and ordinary doings?
I am of opinion that evidence in this case of
the previous relations of the parties, including evidence of their quarrels and
how they then behaved towards each other, was relevant on the issue of malice
as above defined by the House of Lords.
If the evidence was relevant to any issue, then
I can find no authority to justify the exclusion of such evidence merely on the
ground that it disclosed some other crime or offence of a similar nature
committed by the accused. The decision of the Privy Council in Makin v. Attorney-General
for New South Wales, and
of the Court of Appeal in The King v. Bond, sufficiently establish this.
[Page 482]
For these reasons, I agree on this point with
the conclusion of Mr. Justice Harrison who dissented in the court below.
As the majority of this Court has come to the
conclusion that the appeal should be dismissed, it is unnecessary for me to
express an opinion on the question of jurisdiction or on the other points
raised on behalf of the prisoner.
Appeal dismissed.
Solicitor for the appellant: E. B. MacLatchy.
Solicitor for the respondent: G. W. MacDonald.
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