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1910, Henry Grills - Unfit For Publication
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Randwick Asylum for Destitute Children Register 1

ASYLUM FOR DESTITUTE CHILDREN

ADMISSION

DEPARTURES

No.

Name.

Date.

 

Age.

Religion.

Date.

 

Age.

General Remarks

2943

Grills Thomas

Oct 4

1876

9

Prot

Jun 1880

29

12¾

Apprenticed to Mr Samuel Baxter of Guildford, N Parramatta

2944

Grills Alfred

Oct 4

1876

8

Prot

Jan 1881

11

12 1/6

Apprenticed to Mr Hamilton McCaughey of Grafton

 

 

Brother of the preceding

 

 

 

 

 

2945

Grills Henry

Oct 4

1876

7

Prot

Dec 1881

29

12 1/6

Apprenticed to Mr Samuel Dundas, of Robertson

 

 

Brother to the two preceding

 

 

 

 

 

2946

Grills Ernest

Oct 4

1876

6

Prot

Dec 1882

12

12 1/6

Apprenticed to Mr James MacDonald of Rocky Mount Clarence River

 

 

Brother to the three preceding

 

 

 

 

 

2947

Grills Herbert

Oct 4

1876

5

Prot

Jan 1883

20

11¼

Discharged to mother Mrs J Horan [or Horen] of Plattsburg Wallsend

 

 

Brother to the four preceding

 

 

 

 

 

Illegitimate children received from mother. See application No. 534 Minute folio


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Randwick Asylum for Destitute Children. Image: Australian Town and Country Journal, Sat 29 Jan 1870, p. 17. Reproduction: Peter de Waal
Randwick Asylum for Destitute Children. Image: Australian Town and Country Journal,
Sat 29 Jan 1870, p. 17. Reproduction: Peter de Waal

 

Henry Herbert Grills birth certificate. Photo: Peter de Waal
Henry Herbert Grills birth certificate. Photo: Peter de Waal

~ ~ ~ ~ ~

The Macleay Chronicle, Wed 9 Mar 1910 2

KEMPSEY POLICE COURT.

    On Thursday, before Mr GE Thompson and Mr S Bond, JsP.

    On Saturday, Henry Grills was charged with committing an abominable crime, and remanded till 12th inst.

~ ~ ~ ~ ~

The Macleay Argus, Fri 11 Mar 1910 3

ARGUS GLANCES.


    At the Kempsey Police Court on Saturday last a man named Henry Grills was charged with committing an unnatural offence at Clybucca. Accused was remanded in custody for 8 days.

~ ~ ~ ~ ~

The Macleay Chronicle, Wed 16 Mar 1910 4

KEMPSEY POLICE COURT.

    On Friday, before the PM and Messrs C Sutherland and JW Wilson, JsP.

ON SATURDAY, BEFORE THE PM.

    Henry Grills, charged with an alleged abominable offence, at Unkya, was committed for trial to next Quarter Sessions, bail allowed, self in £80. and one surety to a like amount.

~ ~ ~ ~ ~

The Macleay Argus, Fri 18 Mar 1910 5

KEMPSEY POLICE COURT.

    Friday, March 11. Before the PM and Messrs JW Wilson and C Sutherland, JsP.

SATURDAY, March 12. BEFORE THE PM.

    Henry Grills, charged with an alleged unnatural offence at Clybucca was committed for trial at the next Court of Quarter Sessions at Kempsey. Bail was allowed, self in £80, and one surety of £80.

~ ~ ~ ~ ~

The Macleay Chronicle, Wed 6 Apr 1910 6 & 7

KEMPSEY QUARTER SESSIONS.

    THIS COURT opened on Monday, Before His Honor Judge Docker. 8 Mr RJ Browning prosecuted for the Crown; Messrs G Young and R Cowan (barristers) were also in attendance. Mr Davis, CPS., acted as Clerk of Arraigns.

    Messrs SA Jackson, Herbert Hennessey and Richard Laney were excused from attendance as jurors, owing to absence in Sydney. Mr ET Robinson was also excused conditionally upon attending if called by telephone.

SECOND DAY—Tuesday.

    The Court opened at 9 am.

SODOMY.

    Henry Grills was charged with having at Unkya, on 2nd March 1910, assaulted Horace [James] Wood and committed an abominable offence; a second count was for indecent assault.

    Accused pleaded not guilty and was defended by Mr Hardiman.

    Jury—Samuel Bond (foreman), F Ward, Henry Borger, George Bond, Robert Plummer, Simon Fraser, Fred. Gill, Ernest A Nelson, Cornelius Harvey, Wm. Frith, Jas. Hogan, Henry Manning.

    An order was made ordering all under the age of 21 years to leave the Court. In view of the nature of the case His Honor also said the remaining jurors could leave the precincts of the Court for an hour.

    The evidence was of a disgusting nature and quite unfit for publication. Witnesses for the prosecution were the lad Horace Wood, his mother, Const. Grove, and Dr Barron.

    Accused went into the box and denied the charge in toto.

    After addresses from Mr Hardiman and the Crown Prosecutor, His Honor summed up in an address of 35 minutes and the jury retired at 12.20, and returned into court at 3.35 pm with a verdict of guilty on the first count, and prisoner was remanded for sentence.

~ ~ ~ ~ ~

The Macleay Argus, Fri 8 Apr 1910 9

KEMPSEY QUARTER SESSIONS.
Monday, April 4 – Before His Honor Judge Docker.

    Mr RJ Browning acted as Crown Prosecutor, and Mr Young and Mr R Cowan (barristers) also attended. The other legal gentlemen present were Messrs Gilfillan, LJ Hardiman, Rudder and Banks-Smith (Port Macquarie).

    Mr C Sutherland, MP., acted as Deputy Sheriff, and during a portion of the sittings Miss Docker occupied a seat on the Bench.

    Mr Arthur Jackson, Mr ET Robinson, Mr Herbert Hennessy, and Mr Richard Lainey were excused as jurymen.

Tuesday, April 5th.

ALLEGED ABOMINABLE OFFENCE.

    Henry Grills was charged that at Unkya on March 2nd he did commit an offence on a boy nine years of age named Horace Woods. On a second count he was charged with indecent assault.

    Accused pleaded not guilty and was defended by Mr Hardiman.

    Jury—Messrs Samuel Bond, F Ward, H Borger, George Bond, Robert Plummer, Simon Fraser, Fred. Gill, EA Nelson, C Harvey, W Frith, James Hogan and H Manning. Mr S Bond was foreman.

    Evidence was given by Constable Groves, Horace Woods, Dr Barron and Mrs Woods.

    The jury found a verdict of guilty on the graver [1st] charge.

    The prisoner Grills was brought up for sentence on Wednesday morning.

    Mr Hardiman said he wished to reserve two points. The first was that His Honor should have directed the jury that the statement made by Constable Groves in the presence of accused was not evidence against the accused. The second point was that His Honor allowed statements made in the presence of accused and which were denied by the accused to go to the jury as evidence against the accused.

    His Honor said these points should have been brought up before. However, he would reserve them conditionally. He would not state a case unless he received word from counsel that he intended to go to the Supreme Court on these points of law.

    When asked if he had anything to say why sentence should not be passed the prisoner protested his innocence, and traversed the evidence at some length.
Addressing Grills, His Honor said the prison [sic] had been found guilty of an abominable offence—an offence that is not named amongst Christians. The offence was characteristic of heathens and not Christians. He was afraid this Class of offence was altogether too common in these districts. The law provided a maximum penalty of penal servitude for life for this Class of offence. The jury had brought in a verdict of guilty. His Honor said in his experience the jurors in this district were not particularly eager to convict—in fact they tried to let a man off, even at the expense of their intelligence and their honesty. The fact that the prisoner had made a statement and did not give evidence on oath was fatal to his case. No one could believe what he said when he wouldn’t swear to the truth of it. The jury had brought in a right and proper verdict, and he sentenced prisoner to seven years’ penal servitude.

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The Macleay Argus, Fri 8 Apr 1910 10

MACLEAY ARGUS.
Inveniam viam aut facium.
Friday, April 8, 1910.

JUDGE DOCKER AGAIN.
HE INSULTS THE WHOLE DISTRICT.

    THE ARGUS has a great respect for the majesty of the law, and those learned gentlemen who administer it, but we deem it our duty to strenuously protest against certain remarks made by  Judge Docker at the recent court of Quarter Sessions. His Honor is somewhat noted for his ponderous jokes, but he can also say things in a suave voice and with a nasal twang which bite very deep. On Wednesday morning, when sentencing Grills, who had been found guilty of an abominable offence, Judge Docker said this Class of offence was altogether too common in these districts. That was a gratuitous insult, but we can let that pass, as the records of the Kempsey court refute such an allegation. But His Honor went further. He heaped contempt and insult on the heads of the very best-citizens in our midst—these who are chosen to serve on a jury. He also accused them of being actuated in their decisions by dishonest motives. We give his exact words: —In my experience the jurors in this district are not particularly anxious to convictin fact they try to let a man off, even at the expense of their intelligence and their honesty. There is only one meaning to be derived from this utterance. The first clause is true—the jurors (men who live in the district and know how fallible are some judges), unlike Judge Docker, are not anxious to convict. But they are earnestly desirous of balancing fairly the scales of justice, and do not condemn a man because he happens to be in the dock. Judge Docker’s observations are an insult to the whole community. The jury list in this district has been overhauled lately and the men who act as jurors now compare most favourably with the same Class of men in any other part of Australia. To accuse them of dishonesty and want of intelligence is a gross insult which should be resented by every Class in the community. In our law reports published this week we print the names of the jurymen, [see above] and we leave our readers to judge whether any one but a prejudiced man with a mental kink could describe any of those gentlemen as being unintelligent and dishonest. Men who serve their country as jurors sacrifice time and money, and it is like rubbing it into be grossly insulted by a District Court Judge. Whether purposely or not, His Honor Judge Docker chose a very opportune time for himself to made these remarks. It was after the jury penal had been dismissed, and we doubt if a single juror was present. Had the whole crowd of those summoned been in court we venture to assert more than one would not have taken it lying down and would have publicly protested against the Judge’s utterances. His Honor District Court Judge Docker certainly owes an apology to the jurymen on the Macleay.

~ ~ ~ ~ ~

The Macleay Chronicle, Wed 13 Apr 1910 11

KEMPSEY QUARTER SESSIONS.

    On the Court opening on Wednesday morning, Henry Grills was brought up for sentence.

    Mr Hardiman asked His Honor to reserve two points: 1. That His Honor should have directed the jury that statements made to Constable Groves by the lad Wood in the presence of accused and denied by him were not evidence of guilt. 2. That His Honor allowed the statements made in the presence of accused and denied by him as false to go to the jury as evidence.

    His Honor said he would formally reserve the points, but would not send them on to the Supreme Court until Counsel requested him to do so. There were two things to be considered, first whether there was anything in the points, and, secondly, whether accused had any money. If Mr Hardiman desired the points to be submitted to the Supreme Court he would send them in at first opportunity.

    When asked if he had anything to say why sentence should not be passed, Grills said he was innocent of the charge. He could not bring any defence, as only two of them were present at the cart. He also said that certain evidence to his advantage had not been brought forward by the police.

    The police said there was nothing known against the accused.

    His Honor said the offence was one not to be mentioned amongst Christians, yet they used the word denoting the offence frequently as a term of endearment. The offence was at one time a capital crime, but that had been altered to lengthy terms of imprisonment, of which the minimum was 5 years. It could not be said that juries in this district were particularly anxious to convict. So far as his experience went, they tried their best to acquit, even at the expense of intelligence and honesty. He had no doubt the verdict of the jury was the correct one. It was incredible that the mother of the child would bring such a false charge against him on an offence for which he might be sentenced to penal servitude for life. He then passed a sentence of 7 years’ penal servitude.

    Prisoner remarked that the sentence was a very unjust one, as he was innocent of the charge.

    The court then adjourned sine die.

~ ~ ~ ~ ~

The Macleay Argus, Fri 15 Apr 1910 12

CORRESPONDENCE.

JUDGE DOCKER AND MACLEAY JURYMEN.

To the Editor.

    Sir,—As one whose name has figured on the jury lists of this district, I wish to take exception to the remarks of His Honor Judge Docker during the hearing of a criminal case at the last Quarter Sessions. As reported in your columns His Honor said that juries in this district did not seem willing to convict and sometimes refused to do so, at the sacrifice of their honesty and in violation of their intelligence. Such a remark is an insult to every juror in the district and should be indignantly rebutted and His Honor requested to publicly apologise. Not being on the jury list at present I cannot take any active steps, but advise those on the list to hold a public meeting and take such steps as will compel the proper authorities to look into this matter and compel the unqualified withdrawal of the remarks complained of. If the jurors do not take some decided action they lay themselves open to the imputation that the strictures are just, which anyone acquainted, as I am, with the character of those gentlemen, who know to be quite erroneous, and therefore to be avoided.

    I may also say that if Judge Docker will let his memory travel back a few years he will not be surprised if I say that people who live in glass houses should not throw stones, and if he wishes my reasons for this remark I will be most happy to furnish them. Apologising for trespassing on your space, I am

Yours faithfully,
ARCHIE RUDDER.

~ ~ ~ ~ ~

The Richmond River Herald and Northern District Advertiser, Fri 15 Apr 1910 13

KEMPSEY QUARTER SESSIONS.
————

THE following cases were heard at the Kempsey Quarter Sessions:—

    Henry Grills, charged with that at Unkya on March 2nd he did commit an offence on a boy nine years of age named Horace Woods. On a second count he was charged with indecent assault. Judge Docker, in pronouncing sentence, said that he was afraid this class of offence was altogether too common in these districts. The law provided a maximum penalty of penal servitude for life for this class of offence. The jury had brought in a verdict of guilty. His Honor said in his experience the jurors in this district were not particularly eager to convict—in fact they tried to led a man off, even at the expense of their intelligence and their honesty. The fact that the prisoner had made a statement and did not give evidence on oath was fatal to his case. No one could believe what he said when he wouldn’t swear to the truth of it. The jury had brought in a right and proper verdict, and he sentenced prisoner to seven years’ penal servitude.

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Henry Grills, Gaol photo sheet 14

SRNSW: NRS2138, [3/6075], Darlinghurst Gaol photographic description book, 1910-1911, No. 11300, p. 13, R5114.


Gaol Photo Sheet - 
Transcribed Details

No. 11300

Date when Portrait was taken: 26 April 1910

Name: Henry Grills

Native place: NSW

Year of birth: 1869

Arrived       Ship: –
in Colony }   Year: –

Trade or occupation
previous to conviction  } Tinsmith

Religion: C of E

Education, degree of: R & W

Height: 177

Weight     On committal:
in lbs     } On discharge:

Colour of hair: Turning grey

Colour of eyes: Grey

Marks or special features: Scars on back of neck. Scar on left forearm. Scars on right shin

(No. of previous Portrait ... ) 

CONVICTIONS

Where and When Offence. Sentence

Kempsey Q.S

5

4

1910

Sodomy

7 yrs P.S.


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The Sydney Morning Herald, Sat 7 May 1910 15

STATE SUPREME COURT.
———
IN BANCO.
(Before the Chief Justice, Mr Justice Cohen,
and Mr Justice Gordon.)

APPEAL AGAINST CONVICTION

Rex v. Grills.

    Mr Young, instructed by Mr LJ Hardiman, of Kempsey (by his agent, Mr JW Maund), appeared in support of an appeal against the conviction of Henry Grills; and Mr Browning, instructed by the Crown Solicitor (Mr JV Tillett), in support of the conviction. Judge Docker, before whom accused was tried, in the special case reserved for the opinion of the Supreme Court, stated that the prisoner was tried before him at the Kempsey Quarter Sessions on April 3 last on a criminal charge, and was convicted and sentenced to seven years’ penal servitude. In directing the jury, his Honor told them that the only persons who could speak directly as to the occurrence of March 2 were a boy and the accused himself; that the evidence of the boy, if true, proved that a criminal assault had been committed upon him by the accused; that the accused, in the statement which he made to the jury, and also in his statement to the constable when charged, denied that he had committed any such assault; and that, therefore, their verdict depended upon the question whether they believed the boy or not, and he also told them that unless they were satisfied as to the truth of the boy’s evidence they ought to acquit the accused.

    Mr Hardiman, the attorney for the accused, took no exception to the summing up, nor did he ask his Honor to give any directions to the jury; but the next day, when prisoner was called up for sentence, he asked his Honor to reserve the following points:—That his Honor should have directed the jury that the statements made by Constable Grove in the presence of the accused tending to implicate him in the crime, and denied by him, were not evidence against him of his guilt; (2) that his Honor allowed statements made in the presence of the accused, and denied by him as false, to go to the jury as evidence against the accused. His Honor added:—

“I am compelled by law to reserve points at the request of the prisoner’s counsel, and to state a case accordingly; but I have to point out that an assumption of facts is involved in the statement of the points which is not correct. The second point assumes that I gave some direction to the jury equivalent to telling them that the statements referred to were evidence against the accused. That is not the fact. It is the fact that I did not give the directions mentioned in the first point. I was not asked to do so, nor was any objection raised when the constable gave his evidence; but I had impliedly given the jury direction to the same effect by telling them that the question of the prisoner’s guilt depended upon the evidence of the boy himself.”

    The question was whether the jury were properly and sufficiently directed.

    Mr Young said that the main point was that three classes of evidence were allowed to go to the jury. Some of it was not admissible, but was apparently not objected to by the attorney for the accused; but whether admissible or not the evidence was allowed to go to the jury without a direction by his Honor as to the way in which it had been left to them. The first class of evidence was a statement made by the boy to accused, and the latter’s denial; secondly, the question put by the constable to the boy in the presence of the accused, and also denied by accused; and, thirdly, the questions put by the constable direct to the accused, and denied by him. Such evidence, if left to the jury, should have been accompanied by an express direction that the jury should receive the evidence with caution, and that they should not act on such evidence unless they came to the conclusion that there was something in the statements which implied an admission of guilty on the part of the accused.

    Mr Browning, on the other hand, argued that there was no such absolute denial by the accused as would render the evidence referred to inadmissible. Even if the evidence was wrongly admitted, it was merely through inadvertence, or because it was deliberately admitted by the advocate for the accused without objection as favourable to his client because it went to show that he was not guilty of the greater of the two offences charged in the indictment.

    The Chief Justice: The direction set out in the case stated does not seem to coincide with that laid down by Mr Justice Hawkins in the judgment in Regina v Smith.

    Mr Young said his contention was that there should have been an express direction to the jury that it would be unsafe to accept the evidence of the boy, and accused’s denial, unless they came to the conclusion that what took place verbally between them was evidence against accused.

    The Court reserved judgment.

~ ~ ~ ~ ~

NSW Supreme Court Judgment – Henry Grills and The King, 24 May 1910 16 & 17

p. 309

1910. May 6, 24. The CJ. Cohen J. and Gordon J. New South Wales. R. v. Grills

    Criminal Law—Evidence—Conversation between accused, constable and a third person—Incriminating statements denied by accused—Admissibility as evidence of guilt—Judge’s direction to jury.

    The prisoner was convicted of having committed an unnatural offence upon a boy. A conversation between a constable, the accused and the boy was admitted in evidence during the Crown case without objection, though the accused had denied some of the statements then made. The Judge, when directing the jury told them that as the accused in his statement to the constable had denied his guilt, their verdict depended upon the question whether they believed the boy or not. No objection was taken to His Honor’s direction. The Full Court held that the evidence was admissible, but that it was an insufficient direction, inasmuch as the jury should have been affirmatively and expressly directed that in deciding on the guilt of the accused they were to pay no regard to any portion of the statement made in the conversation which were denied by the accused. Held, further, that it was the duty of the Judge to so direct the jury, and as he failed to do so the want of objection at the time did not preclude the raising of the point.

    CROWN CASE stated by Docker, DCJ

    This prisoner was tried before me at the Kempsey Quarter Sessions, April 5th, 1910, on a charge of having committed an unnatural offence upon a boy. He was convicted and was sentenced to seven years penal servitude. It is fortunately not necessary to set out the whole of the disgusting evidence which was given in this case. The points reserved refer solely to, the evidence of the arresting constable, George Grove. His evidence so far as it is relevant to the points taken was as follows:— “On March 4th (two days after the alleged offence) I had a conversation with the accused where he was camped with his cart 300 yards away from Mrs Wood’s residence. Horace Wood was present. After some preliminary questions I said to the accused, ‘Do you know this boy?’ Accused replied, ‘Yes, he has been here before.’ I said to Horace Wood, ‘Do you know this man?’ He replied, ‘Yes.’ ‘Is this the man that pulled you into the cart, pulled

~ ~ ~ ~ ~

p. 310

1910. R. v. Grills.

your trousers down -and assaulted you?’ ‘Yes.’ Accused said, ‘Assaulted him! It’s the first I’ve heard of it.’ I said, ‘A complaint has been made that you pulled the boy into your cart pulled his trousers down and committed an unnatural offence upon him.’ Accused said, ‘When was this supposed to happen?’ I said, ‘On Wednesday afternoon last between, four and six.’ Accused said, ‘I was washing when the boy came to the cart. I got up to go to the cart for my pipe and tobacco. The boy climbed on the nave of the wheel, I tickled him a bit—that was all.’ I said, ‘I am going to ask the boy in front of you what he told me and you can hear for yourself what he says.’ ‘Did this man pull you into the cart and pull your trousers down?’ The boy said ‘Yes.’ Accused said, ‘That’s not a fair way of asking him, you are rehearsing his statement. Let me ask him.’ I said, ‘Go on.’ Accused looked at him and said, ‘Do you say that I pulled your trousers down?’ The boy did not answer. Accused again said, ‘Do you say that I pulled your-trousers down?’ The boy replied, ‘No a button came off and they fell down.’ I said, ‘The boy is frightened. Horace, is it true what you told your mother and what you told me last night?’ The boy replied, ‘Yes.’ I said, ‘Don’t be frightened—tell the truth. Did this man pull your trousers down or did a button come off and they fell down?’ The boy replied, ‘He pulled them down.’ Accused said, ‘Oh! they have made up a tale between them.’ I said ‘Did you give the boy a bunch of grapes?’ Accused said, ‘Yes, I gave him two bunches.’ ‘Did you give him sixpence—two three penny pieces?’ ‘Yes.’ ‘What did you give him the sixpence for?’ ‘To buy a melon; he told me his mother sold melons.’ I then charged the accused with having committed an unnatural offence upon the boy. Accused replied, ‘I deny everything.’ I said, ‘Were you wearing on Wednesday last the shirt and trousers you have on now?’ Accused replied, ‘I think so. Why? Anything wrong with description or dress?’ I said ‘That’s all right.’ Accused said. ‘Why didn’t the boy sing out? There was a

~ ~ ~ ~ ~

p. 311

1910. R. v. Grills.

man passed in a sulky, and a man working in a paddock over here. I want them as witnesses.’ I said, ‘The boy cried.’ Accused said, ‘He didn’t cry here.’ Next morning I said to accused in the lockup, ‘You spoke about some witnesses; tell me who they are and what you want, and I’ll do what I can.’ Accused said, ‘I don’t think they would be any good to me. I don’t think I need them. I want to see a solicitor.’ ” In cross-examination the witness said that the accused may have used the words, “I deny, doing anything to the boy.”

    The boy, Horace Woods, nine years old, gave evidence as to the conduct of the accused, and medical evidence of the result of an examination on the night of March 4th was also given.

    In directing the jury I told them that the only persons who could speak directly as to the occurrences of the afternoon of March 2nd were the boy, Horace Wood, and the accused himself; that the evidence of the boy, if true, proved that a criminal assault had been committed upon him by the accused; that the accused in the statement which he had made to the jury, and also in his statement to the constable when I charged, denied that he had committed any such assault and that therefore their verdict depended upon the question whether they believed the boy or not, and I told them that unless they were satisfied as to the truth of the boy’s evidence they ought to acquit the accused. I pointed out that the medical evidence was corroborative of the boy’s evidence as to his having been assaulted by some person and that the statements of the accused to the constable as to Horace Wood having climbed on the cart and as to tickling him were corroborative of the boy’s evidence that it was the accused who had assaulted him. I made no further reference to the constable’s evidence as I had placed before the jury the case as detailed by the boy himself.

    The attorney for the accused, Mr Hardiman, took no exception to my summing up, nor did he ask me to give any direction to the jury; but the next day when the prisoner was called up for sentence he asked me to reserve the follow-

~ ~ ~ ~ ~

p. 312

1910. R. v. Grills.

ing points for the consideration of the Judges of the Supreme Court:— 1. That his Honor should have directed the jury that the statements made by Constable Grove in the presence of the accused tending to implicate him in the crime and denied by him were not evidence against him of his guilt; 2. That his Honor allowed statements made in the presence of the accused and denied by him as false to go to the jury as evidence against the accused.

    I am compelled by law to reserve points at the request of prisoner’s counsel and to state a case accordingly, but I have to point out that an assumption of facts is involved in the statement of points which is not correct. The second point assumes that I gave some direction to the jury equivalent to telling them that the statements referred to were evidence against the accused. That is not the fact. It is the fact that I did not give the direction mentioned in the first point. I was not asked to do so, nor was any objection raised when the constable gave his evidence; but I had impliedly given the jury direction to the same effect by telling them that the question of the prisoner’s guilt depended upon the evidence of the boy himself

    The question for the consideration of the Judges of the Supreme Court is whether the jury were properly and sufficiently directed by me.

    Young, for the prisoner. The statements made by the boy to the accused, the questions put by the constable to the boy in the presence of the accused, and the statement put by the constable to the accused himself, all of which were denied by the accused, were inadmissible in evidence. Such evidence left to the, jury should have been accompanied by an express direction that they should not act upon it as evidence of guilt against the accused unless they found that his answers amounted to an admission of guilt: R. v. Parker (18 W.N. 255); R. v. Stevens (21 W.N. 245; 4 S.R. 727); R. v. Smith (18 Cox 470). His Honor says he impliedly gave a direction to the jury, but that is not sufficient. There must be an express direction. R. v. Lillyman ([1896] 2

~ ~ ~ ~ ~

p. 313

1910. R. v. Grills.

Q.B. 178) shows that if the evidence was admissible at all it could only be to show the consistency of the boy’s evidence. The jury may have considered the evidence as proof of guilt.

    Browning, for the Crown. The evidence was tendered to prove, out of the mouth of the accused himself, the correctness of the boy’s story. I do not dispute that had the statements been denied they would have been inadmissible, but here the accused admitted that the boy was there, that he got into the cart, etc., etc. That is corroboration of the boy’s story. If there had been an absolute denial of everything the Counsel appearing for the accused would have objected, but here there was at the most a qualified denial. The evidence was then clearly admissible on the whole facts of the case as part of the res gestae. 18 The accused’s Counsel by not objecting may be taken to have wished the evidence to go in as evidence to show that he was guilty rather of an indecent assault as charged in the second count than of the more serious offence. He referred to R. v. Thompson (26 TLR, 252).

    Young, in reply. I do not say that his Honor gave a wrong direction, but an insufficient direction. He should have told the jury that all but two statements were absolutely denied by the accused and warned them not to consider the statements denied as evidence of guilt.

Cur. ad. vult.

    May 24th.

    THE CHIEF JUSTICE.  The points reserved in this ease are:— (1) “That his Honor should have directed the jury that the statements made by Constable Grove in the presence of the accused tending to implicate him in the crime, and denied by him, were not evidence against him of his guilt; (2) That. his Honor allowed statements made in the presence of the accused, and denied by him as, false, to go to the jury as evidence against the accused.”

    The authority principally relied on was the case of Reg. v. Smith (18 Cox C.C. 470) The observations made in

~ ~ ~ ~ ~

p. 314

1910. R. v. Grills. The CJ. [Cullen]

that case must be taken with the qualifications to be gathered from the subsequent decisions in R. v. Bromhead (71 J.P. 103), and R. v. Thompson (26 TLR, 252). But even The CJ the ruling in Reg v. Smith did not go to the length of the contention urged before us, that the whole of an adverse statement made before the trial should be excluded from the jury if it once appears that the prisoner gave it a general denial That ruling conceded that if some part of the statement had been admitted, the statement itself need not be excluded from the jury, provided that they are warned that only so much of it can be taken into consideration as they find to have been admitted by the prisoner In R v Bromhead the prisoner Bromhead made no reply when the statements of Clayton, who had been jointly charged with the same offence were read over to him. The directions of the Judge at the triad had been in accordance with paragraphs 816 aid 907 in Taylor on Evidence (10th Edit.), and he had also instructed the jury in the terms here set out: “In summing up I expressly directed the jury that the statement was not in itself any evidence of the matters contained in it, that what they had to consider was the conduct and demeanour of Bromhead when the statement as read in the presence of himself and Clayton, whether the circumstances were or were not such that he might reasonably be expected to make some reply, and whether by his remaining silent he admitted the truth of the statement or some part of it, or whether his silence could be otherwise accounted for.” Lord Alverstone, L.C.J said in delivering judgment: “I am not going to lay down any general rule as regards the admissibility of statements made by one person and read over to the prisoner. I am certainly not going to say that if the prisoner says ‘It’s a lie,’ the statement is not admissible, and that if he does not say that, that it is admissible. In this case evidence was given that articles stolen from several places were found in the possession of the prisoner, and that other portions of such stolen property were found in the possession of Clayton. It was proved that the prisoner and Clayton

~ ~ ~ ~ ~

p. 315

1910. R. v. Grills. The CJ.

had for some years been friends and associates. On being charged together Clayton said, Yes, it’s quite right; I sold them for Horace’ (meaning Bromhead). Bromhead made no reply. The statement which Clayton had previously made, and which had been taken down in writing, was then read over, to Bromhead, and he again made no reply. The prisoner when called as a witness first denied that the statement had been read over to him, but afterwards said that the reason why he made no explanation was that he was represented by a solicitor, and that he thought it was the solicitor’s business to make explanations. The deputy-recorder was satisfied that he had ample opportunity of denying the statement, or making any explanation or observation he thought fit. It is quite impossible for us to say that in this particular case the policeman did more than has been done in other cases, the statement not being admissible, to prove the facts alleged in it, but only as dealing with the conduct and demeanour of the prisoner. The judge directed the jury in accordance with paragraphs 816 and 907 of Taylor on Evidence, and it cannot be said that these statements were used for a wrong purpose. In this particular case there was evidence that having regard to the connection between the prisoner and Clayton a question for the jury was whether the conduct of the prisoner, when Clayton’s statement was read to him, was such as helped them to arrive at a conclusion as to his guilt or not. I am not saying anything as to the right of constables generally to read statements over to prisoners and thereby make them admissible. In my opinion, in this particular case there was nothing of that kind, and any idea that the police were trying to manufacture evidence is negatived in this case.” In R. v. Thompson, decided during the present year, the judgment of the same learned Judge is reported as follows: “The Lord Chief Justice, in giving judgment, said that the main ground of appeal was that at a certain stage of the proceedings’ a statement by a co-prisoner of the appellant who had pleaded guilty was read to the jury. That Archer’s evidence against

~ ~ ~ ~ ~

p. 316

1910. R. v. Grills. The CJ.

the prisoner required corroboration was beyond all doubt. He expressed no opinion as to the stage at which a statement of the kind complained of should be referred to in the evidence. It was a difficult question, and depended on the way the case was being conducted, and the actual facts of the case. If the case of Reg. v. Smith was supposed to lay down the rule that such a statement was never admissible unless there was an admission by the prisoner that it was true, he thought that went too far on several grounds. He adhered to what was said by himself in Rex v. Bromhead. With regard to this particular case he desired to point out that immediately the statement was made the chairman pointed out to the jury that they were not to accept even provisionally anything said in it as true, and must not allow it to prejudice them against the appellant. Nothing could be fairer than that, and when he came to sum up he told them not to rely upon the statement. Archer was called, and his story was corroborated. There was abundance of evidence against Thompson, and all that could be said was that the statement was put in at an earlier stage than it might have been if the case had been conducted in a different manner. The Court entirely refused to accept the dictum in Reg v. Smith that such a statement was not admissible in evidence unless the prisoner agreed with it, because that would exclude the most ordinary case of a prisoner saying nothing. They thought the statement was clearly admissible, and that there was therefore no ground of appeal.”

    The danger to be guarded against in all such cases, is that once a statement is placed before the jury, however rightly it may have been admitted for some specific purpose, they may treat it as evidence for all purposes. An illustration of this is presented in the cases of trials for rape and kindred offences against females, where a complaint made soon after the occurrence, even in the absence of the accused person is admissible in corroboration of the testimony of the complainant at the trial, as well as to negative her consent where consent is in issue, but it is laid down

~ ~ ~ ~ ~

p. 317

1910. R. v. Grills. The CJ

to be the duty of the Judge to impress upon the jury that the substance of the complaint itself must not be taken as evidence of the things complained of: R. v. Osborne ([1905] 1 KB, 551); R. v. Lillyman ([l896] 2 Q.B. 167). in cases like the present where a statement made before the trial is admissible in view of the prisoner’s attitude towards it at the time, but is not in itself evidence even for the purposes just mentioned, there is at least an equal danger to be guarded against.

    So far as the omission by the prisoner’s Counsel to take any exception to the evidence when tendered is concerned, it will be seen from R. v. Gibson (18 Q.B.D. 537, 542) and R. v. Bridgewater ([1905] 1 KB, 31) that even when inadmissible evidence is received without objection it is the duty of the Judge to direct the jury to disregard it, and if he fails to do so the mere want of objection at the time will not afterwards preclude the raising of the point, though if the judge has so directed the jury the want of objection would have that effect. Turning to the facts of the present case, it is true that there was little, if anything, in what was said by the constable which could fairly be taken as any direct allegation that the prisoner was guilty of the offence. Most of it took the form of questions which the jury were not likely to be misled into construing as evidence against the prisoner. But they would gather from it, when taken in connection with what was said by the boy, that the latter’s account of the occurrence had already been reported by him both to his mother and to the constable. Passing on to the answers given by the boy to the constable’s questions, these, taken in connection with the questions themselves, clearly amount to an allegation that the prisoner was guilty of the offence charged. And though the learned Judge was careful to point out to the jury that in view of the prisoner’s denial of guilt their verdict depended upon the question whether they believed the boy or not, they do not appear to have been sufficiently warned against the danger of treating the boy’s evidence in the box as being supplemented or con-

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p. 318

1910. R. v. Grills.

firmed by what was said by the constable and by himself on the occasion now in question.

    I am of opinion, therefore, that the conviction must be quashed.

    COHEN, J.  The prisoner in this case, who was defended by an attorney, was convicted of having committed an unnatural offence upon a boy. Part of the evidence for the Crown was a conversation between the arresting constable, the boy, and the prisoner, which in part was equivalent to a statement by the boy that the prisoner had committed the offence. This the prisoner denied. During the conversation the prisoner, however, said: “I was washing when the boy came to the cart, I got up to go to the cart for my pipe and tobacco. The boy climbed on the nave of the wheel. I tickled him a bit, that was all.” This is an admission that he was in the boy’s company, and had done something to him, namely tickled him. The whole of the conversation was given in evidence without objection. The learned Chairman of Quarter Sessions in directing the jury told them, “that the only persons who could speak directly as to the occurrences of the afternoon of March 2nd, where the boy Horace Wood and the accused himself; that the evidence of the boy, if true, proved that a criminal assault had been committed upon him by the accused that the accused in the statement which he made to the jury, and also in his statement to the constable when charged, denied that he had committed any such assault, and that, therefore, their verdict depended upon the question whether they believed the boy or not, and that unless they were satisfied as to the truth of the boy’s evidence, they ought to acquit the accused.” He also pointed out “that the medical evidence was corroborative of the boy’s evidence as to his having been assaulted by some person, and that the statements of the accused to the constable, as to Horace Wood having climbed on the cart, and as to tickling him, were corroborative of the boy’s evidence that it was the accused who assaulted him.” The Chairman made no further reference to the constable’s evi-

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p. 319

1910. R. v. Grills. Cohen. J.

dence. as he had placed before the jury the case as detailed by the boy himself. To this summing up no objection was taken by the attorney for the prisoner, but on the following day, when the latter was called up for sentence, his attorney asked the Chairman to reserve the following points for the consideration of this Court:—(1) That his Honor should have directed the jury, that the statements made by Constable Grove in the presence of the accused tending to implicate him in the crime, and denied by him, were not evidence against him of his guilt; (2) That his Honor allowed statements made in the presence of the accused, and denied by him as false, to go to the jury as evidence against the accused. The learned Judge states that the second point assumes that he gave some direction to the jury equivalent to telling them that the statement (meaning that referred to in the before mentioned conversation) was evidence against the accused, but that it is not a fact. He further states that he did not in fact give the direction mentioned in the first ground, but that he had impliedly done so by telling them that the question of the prisoner’s guilt depended upon the evidence of the boy himself. Of the various authorities dealing with the points involved, I would first refer to R. v. Parker ([1901] 18 W.N. 255) in which it was decided that a statement denied by a prisoner is not evidence of his guilt: R. v. Smith ([1897] 18 Cox 470), cor. Hawkins J., was cited in the argument, and although not referred to in the judgment, it no doubt was founded upon that case. In R. v. Stevens (4 S.R. 727), a conviction was quashed because counsel for the prisoner was not permitted to interpose in the course of the evidence of a statement made in the presence of the prisoner, to ascertain whether the latter denied it. Although the question there raised was not the precise question raised in the present case, yet for the purpose of determining it, the Court relied upon the law as it conceived it to be laid down in R .v. Smith (supra) viz.: that where an accused person denies a statement, the statement cannot be received as evidence of his guilt. But this authority has

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p. 320

1910. R. v. Grills. Cohen. J.

come under review in R. v. Bromhead ([1906] 71 J.P. 103) and in R. v. Thompson ([:1910] 26 TLR, 252), and ([1910] W.N. 27), before the Court of Criminal Appeal. In the latter case, when the evidence of the statement and denial had been given, the Chairman of Quarter Sessions told the jury that they “should not accept anything that is stated in that as true. It may be absolutely fake, and you must not accept it even provisionally as true. I must ask you at this stage not to let the statement prejudice you against the prisoner.” Again, in summing up, he told the jury that they should not draw front the statement any inference as to the truth of the matters contained therein, as the prisoner denied their truth. The Criminal Appeal Court held that the statement, though the truth was denied by the prisoner, was admissible in evidence against him, and that if Hawkins J. in R. v. Smith was supposed to have laid down that such a statement was not admissible, unless it was either in whole or in part, admitted to be true by the prisoner, it went too far, and that what weight it ought to have with the jury was a different question, and the Chairman had fairly directed them as to that point.

    In R. v. Bromhead (supra) the jury had been instructed in accordance with paragraphs 816 and 907 in Taylor on Evidence, and in summing up were expressly told “that the statement was not in itself any evidence of the matters contained in it. That what they had to consider was the conduct and demeanour of Bromhead when the statement was read in the presence of himself and Clayton, whether the circumstances were or were not such that he might reasonably be expected to make some reply, and whether by his remaining silent he admitted the truth of the statement, or some part of it, or whether his silence could otherwise be accounted for.” This direction was upheld. The result of these authorities appears to me to be, that where there is a denial of a statement and nothing more, the jury should be told not to draw any inferences of guilt from it, but that where the whole pr part of a statement is admitted to be

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p. 321

1910. R. v. Grills. Cohen. J.

true, whether directly or impliedly, or where there is otherwise a connected admission by him as to his conduct in relation of the occurrence, or where the accused remains silent, it is for the jury to say to what extent the admissions or silence should operate against the accused. Yet in every instance the statement is admissible in evidence. It does, however, seem to me that, where the accusatory statement is altogether denied by the accused, and there is no connected admission by him, so that the jury would be told not to infer guilt from the statement, it would be fairer that before the statement is placed before the jury, the presiding Judge should be informed of the denial, if necessary on the voir dire, for once evidence is heard it may be difficult if not impossible to eradicate its effect upon the mind, and justice therefore might not be done. For the foregoing reasons, in view of the admissions by the prisoner, I do not think that the learned Chairman would have correctly directed the jury had he done so in terms of point 1, but the proper direction would have been in substance that adopted in R. v. Bromhead, the attention of the jury being directed to the extent of the admissions made by the prisoner, as well as to his denial, in relation to which they should be told that it was for them to determine how far his admissions went to establish his guilt, and that they should not draw any inference of guilt from the allegations in the statement, which had been denied, unless in their opinion the admission might reasonably be regarded as qualifying the denial, and to the extent of that qualification, as laying a further foundation, if any, for drawing an inference of guilt from the statement. As to the second point, I think that his Honor was in error in not affirmatively warning the jury against accepting as evidence of guilt the statement made in the presence of the prisoner but with the additional observations suggested by me as to point 1. The fact that he told the jury that the question of the prisoner’s guilt depended upon the evidence of the boy himself, although he did not give any direction equivalent to telling them that the statement was evidence against

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p. 322

1910. R. v. Grills. Cohen. J.

the accused, is not sufficient in my opinion, for notwithstanding the existence of the one direction and the absence of the other, the jury without their attention being called to the statement, and the manner in which it should be treated, might reasonably suppose that being in evidence, it was within, their competence to consider it, together with the other evidence, in determining the guilt of the prisoner. In my opinion, the conviction should be reversed.

     GORDON, J.  I agree with the, judgment delivered by their Honors, and the conclusion at which they have arrived. I desire, in addition to what has been said by their Honors, shortly to state my reasons for concurring in that conclusion. The decisions of the English Courts, especially the cases of R. v. Smith (18 Cox C.C. 470) as explained by R. v. Thompson (26 TLR, 252), and R. v. Bromhead (71 J.P. 103) seem to me to lay down the law, that a statement made by a fellow prisoner or by any person in the presence of, or repeated to, an accused person is not necessarily inadmissible to be given in evidence on the, trial of that accused person because he did not admit the same directly and in full. If it is proved that the accused, admitted the whole, or any material portion, of that statement, the whole or the portion admitted by him becomes evidence against him on the question of his guilt, and such admission may be proved either directly by his assent thereto, or impliedly by his conduct. In all such cases, however, it is the duty of the presiding Judge to clearly and distinctly direct the jury that any portion of such statement, which in their opinion was not admitted by the accused, either directly or impliedly, is to be discarded from their consideration when deciding whether the accused is, or is not, guilty of the offence with which he is charged. If the Judge fails so to direct the jury—it is a misdirection, or rather, a non-direction, which vitiates the trial. This appears to me clearly decided by the case of R. v. Gibson (18 Q.B.D. 537), and more particularly by the words of the judgment of Matthews J., and Wills J., who say “In either case it is the duty

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p. 323

1910. R. v. Grills. Gordon. J.

of the judge to warn the jury not to act upon evidence which is not legal evidence against the prisoner.”

    “If a mistake had been made by counsel, that would not relieve the judge from the duty to see that proper evidence only was before the jury. It is sometimes said—erroneously, as I think—that the judge should be counsel for the prisoner, but at least he must take care that the prisoner is not convicted on any but legal evidence.” And the same law seems to me clearly recognised in the cases of R. v. Thompson and R. v. Bromhead above referred to.

    I fully agree with what was said by the Court in R. v. Bridgewater ([1905] 1 KB, 131), viz.: that a prisoner’s counsel cannot stand by and allow without objection some improper question to be put, or some improper evidence to, be given, and then seek on that ground alone to quash a conviction. But in such case, as the Court there seem to me clearly to recognise, it is the duty of the presiding Judge to direct the jury to disregard the evidence so given, and if that direction were given the Court would decline to interfere, but if such direction were not given the Court would interfere and quash the conviction.

    In the case before us, I think the learned Judge was right in allowing to be given in evidence the conversation detailed by the constable between himself, the boy (Horace Wood), and the accused, but he was bound, clearly and distinctly, to tell the jury that in deciding on the guilt of the accused they were to pay no regard to any portion of the statements made or referred to, in the above conversation, save as far as the truth of the same was in their opinion admitted by the accused, either directly or impliedly by his conduct.

    This point is involved in the first question reserved for our consideration in the special case, viz.: “That his Honor should have directed the jury that the statements made by Constable Grove in the presence of the accused, tending to implicate him in the crime, and denied by him, were not evidence against him of his guilt.”

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p. 324

1910. R. v. Grills. Gordon. J.

    The learned Judge states that he did not give this direction specifically and in terms, but he says he gave it by implication in the direction which is fully set forth by him in the special case. That no objection was taken to that direction does not, in my opinion, affect the question according to the principles laid down in R. v. Gibson, and the other cases to which I have referred.

    I have reluctantly come to the conclusion that there was a misdirection, or rather a non-direction, and that on the direction stated to have been given to the jury those gentlemen may have well considered themselves entitled, in deciding whether they would, or would not, give credence to the sworn testimony of the boy, to take into consideration as corroborative thereof the whole of the statements contained, or referred to, in the above conversation, regardless whether the truth of the same was, or was not, directly or impliedly admitted by the accused.

Conviction quashed.

    Attorney for the prisoner: JW Maund, agent for LJ Hardiman, (Kempsey).

~ ~ ~ ~ ~

Evening News, Tue 24 May 1910 19

SEVEN YEARS’ HARD LABOR.
———◦———
THE KEMPSEY CASE.
————
GRILL’S CONVICTION QUASHED.
————

    The NSW Full Court this afternoon—the Chief Justice, Mr Justice Cohen, and Mr Justice Gordon—gave it reserved judgment in respect of the appeal of Henry Grills against his conviction and sentence of seven years by Judge Docker at the Kempsey Quarter Sessions on April 5 last, on a criminal charge. The chief grounds of appeal were that his Honor should have directed the jury that the statements made by Constable Grove in the presence of the accused, tending too implicate accused in the crime, and denied by accused, were not evidence against him of his guilt; and that his Honor allowed statements made in the presence of the accused, and denied by him as false, to go to the jury as evidence against the accused.

    In delivering judgment the Chief Justice said that as far as omission by the prisoner’s counsel to take any exception to the evidence when tendered was concerned, it would be seen from Rex v. Gibson (QBD), and Rex v. Bridgewater, 1905, 1 KB, 31, that even when inadmissible evidence was received without objection it was the duty of the Judge to direct the jury to disregard it, and if he failed to do so the mere want of objection would have that effect. Turning to the facts of the present case, it was true that there was little, if anything, in what was said by the constable which could fairly be taken as any direct allegation that the prisoner was guilty of the offence. Most of it took the form of questions which the jury were not to be misled into construing as evidence against the prisoner. But they would gather fro it, when taken in connection with what was said by the boy, that the latter’s account of the occurrence had already been reported by him, both to his mother and to the constable. Passing on to the answers given by the boy to the constable’s questions, these, taken in conjunction with the questions themselves, clearly amounted to an allegation that the prisoner was guilty of the offence charged, and though the learned Judge was careful to point out to the jury that in view of the prisoner’s denial of guilt, their verdict depended upon the question whether they believed the boy or not; they did not appear to have been sufficiently warned against the danger of treating the boy’s evidence in the box, as being supplemented or confirmed by what was said by the constable, and by himself on the occasion now in question. His Honor was, therefore, of opinion that the conviction must be quashed.

    Mr Justice Cohen and Mr Justice Gordon concurred.

    The appeal was sustained with costs.

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The Advertiser, Wed 25 May 1910 20

PENAL SERVITUDE.
———
A CONVICTION QUASHED.

Sydney, May 24.

    The Full Court to-day quashed the conviction of Henry Grills, who at the Kempsey Quarter Sessions was sentenced by Judge Docker to seven years’ penal servitude for a serious offence. The special case stated set out that at the trial the attorney for the accused took no exception to his honor’s summing up, and failed to ask him to give any direction to the jury. On the next day, however, when the accused was called up for sentence, the solicitor asked his honor to reserve the following points for consideration of the Full Court:—That the judge should have directed the jury that the statements made by Constable Grove in the presence of the accused tending to implicate him in the crime, and denied by him, were not evidence against him of his guilt; also that his honor allowed the statement made in the presence of the accused and denied by him as false to go to the jury as evidence against the accused.

    The court held that his honor was in error in not affirmatively warning the jury against accepting as evidence of guilt the statement made in the presence of the accused. The appeal was accordingly upheld and the conviction quashed.

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The Daily Telegraph, Wed 25 May 1910 21

A CONVICTION QUASHED.
SEVEN YEARS' SENTENCE REVERSED.
JUDGE'S DIRECTION TO THE JURY REVIEWED.

    The Full Court yesterday—comprising Dr Cullen CJ; Mr Justice Cohen, and Mr Justice Gordon—quashed the conviction of Henry Grills, who, at Kempsey Quarter Sessions, was sentenced by Judge Docker to seven years’ penal servitude for a serious offence.

    Mr Young (instructed by Mr Hardiman, of Kempsey, by his agent, Mr JW Maund) appeared on behalf of Grills in the appeal. Mr Browning (instructed by the Crown Solicitor) appeared for the Crown in support of the conviction.

    The special case stated set out that at the trial the attorney for the accused took no exception to his Honor’s summing up, and failed to ask him to give any direction to the jury. On the next day, however, when the prisoner was called up for sentence, the solicitor asked his Honor to reserve the following points for the consideration of the Full Court:—That the judge should have directed the jury that the statement made by Constable Grove in the presence of the accused, tending to implicate him in the crime, and denied by him, were not evidence against him of his guilt; also that his Honor allowed statements made in the presence of the accused and denied by him as false to go to the jury as evidence against the accused. His Honor in stating the case for the consideration of the Full Court, admitted that he was bound by law to reserve points at the request of prisoner’s counsel, and to state a case accordingly, but pointed out that an assumption of fact was involved in the statement of points, and was not correct. The second point assumed that he gave some direction to the jury equivalent to telling them that the statements referred to were evidence against the accused. That was not so, though it was a fact that his Honor did not give the direction mentioned in the first point. He was not asked to do so, nor was any objection raised when the constable gave his evidence; but he did impliedly give the jury direction to the same effect by telling them that the question of the prisoner’s guilt depended upon the evidence of the boy (the prosecutor) himself. Their Honors were asked to determine whether the jury were properly and sufficiently directed by the Judge.

    The Chief Justice, in his judgment, said the observations made in the case now principally relied upon, Regina v. Smith (18 Cox’s “Criminal cases,” page 470), must be read with the qualifications to be gathered from the subsequent decisions in the cases Regina v. Bromhead (71 “Justice of the Peace Reports,” 103). and Regina v. Thompson (26 “‘The Times’ Law Reports,” 252). Even the ruling in Regina v. Smith did not go to the length of the contention which had been urged here, that the whole of a statement made before the trial should be excluded from the jury if it once appeared that the prisoner gave it a general denial. It was conceded in that ruling that if some part of the statement had been admitted the statement itself need not be excluded from the jury, provided that warning was given at the same time that only so much of it could be taken into consideration as the jury found to have been admitted by the prisoner. As to the omission by the prisoner’s counsel to take any exception to the evidence when it was tendered, it would be seen from Regina v. Gibson (18 Queen’s Bench Division) and Rex. v. Bridgewater (1906, the King’s Bench) that even when inadmissible evidence was received without objection it was the duty of the judge to direct the jury to disregard it, and if he failed to do so the mere want of objection at the time would not afterwards preclude the raising of the point, though if the judge had so directed the jury, the want fo that objection would have that effect. In the present case, though the learned judge was careful to point out to the jury that, in view of the prisoner’s denial of guilt, the verdict depended upon the question whether they believed the boy or not, they did not appear to have been sufficiently warned against the danger of treating the boy’s evidence in the box as being supplemented or confirmed by what was said by the constable and by himself on the occasion now in question. He was of opinion, therefore, that the conviction must be quashed.

    Mr Justice Cohen, in a separate judgment, pointed out that in Rex v. Parker (1901, 4 “Law Reports,” and 18 “Weekly Notes”) it was decided that a statement denied by a prisoner was not evidence of his guilt, while in the case Rex v. Stevens (1904, 4 “Law Reports,” 727), a conviction was squashed because counsel for the prisoner was not permitted to interpose in the course of the evidence of a statement made in the presence of the prisoner, to ascertain whether the latter denied it. It seemed to him that where the accusatory statement was altogether denied by the accused, and there was no connected admission by him, so that the jury would be told not to infer guilt from the statement, it would be fairer that, before the statement was placed before the jury, the presiding judge should be informed of the denial, if necessary on the voir dire, for once evidence was heard it might be difficult, if not impossible, to eradicate its effect from the mind, and justice, therefore, might not be done. For these reasons, in view of the admissions by the prisoner, he did not think that the learned Chairman of Quarter Sessions would have correctly directed the jury had he done so in terms of the first ground of appeal, but that the proper direction would have been in substance that adopted in the case Regina v. Bromhead, the attention of the jury being directed to the extent of the admission made by the prisoner, as well as to his denial, in relation to which they should be told that it was for them to determine how far his admissions went to establish his guilt, and that they should not draw any inference of guilt from the allegations in the statement which had been denied, unless in their opinion the admissions might reasonably be regarded as qualifying the denial, and to the extent of that qualification, as laying a further foundation, if any, for drawing an inference of guilt from the statement. As to the second point, he thought his Honor was in error in not affirmatively warning the jury against accepting as evidence of guilt the statement made in the presence of the prisoner, but with the additional observations suggested as to ground one. He thought the conviction should be reversed.
Mr Justice Gordon, who also concurred, thought the fact that no objection was taken to the judge’s direction did not affect the question, according to the principle laid down in the case Rex v. Gibson an other cases.

    The appeal was accordingly upheld, and the conviction quashed.

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The Sydney Morning Herald, Wed 25 May 1910 22

LAW REPORT.
In Banco
(Before the Chief Justice, Mr Justice Cohen, and Mr Justice Gordon.)

ADMISSIBILITY OF EVIDENCE.
A CONVICTION QUASHED.
Rex v. Grills.

    Mr Young, instructed by Mr LJ Hardiman, of Kempsey (by his agent, Mr JW Maund), appeared in support of an appeal against the conviction of Henry Grills; and Mr Browning, instructed by the Crown Solicitor (Mr J[ohn] V[arnell] Tillett), in support of the conviction. Judge Docker, before whom accused was tried, in the special case reserved for the opinion of the Supreme Court, stated that the prisoner was tried before him at the Kempsey Quarter Sessions on April 5 last on a criminal charge, and was convicted, and was sentenced to seven years’ penal servitude. In directing the jury, his Honor told them that the only person who could speak directly as to the occurrence of March 2 were a boy and the accused himself; that the evidence of the boy, if true, proved that a criminal assault had been committed upon him by the accused; that the accused, in the statement which he made to the jury, and also in his statement to the constable when charged, denied that he had committed any such assault, and that, therefore, their verdict depended upon the question whether they believed the boy or not, and he also told them that unless they were satisfied as to the truth of the boy’s evidence they ought to acquit the accused. Mr Hardiman, the attorney for the accused, took no exception to the summing up, nor did he ask his Honor to give any direction to the jury; but the next day, when prisoner was called up for sentence, he asked his Honor to reserve the following points:—That his Honor should have directed the jury that the statements made by Constable Grove in the presence of the accused tending to implicate him in the crime, and denied by him, were not evidence against him of his guilt; (2) that his Honor allowed statements made in the presence of the accused, and denied by him as false, to go to the jury as evidence against the accused. The points at issue were argued during the present Term, and the reserved judgment of the Court was now delivered.

    The Chief Justice, in the course of his judgment, said that the authority principally relied upon the case of Reg. v Smith, in 18 Cox Criminal Cases, page 470. The observations made in that case must be taken with the qualifications to be gathered from the subsequent decisions in Reg. v Bromhead, 71 J.P., 103, and Reg. v Thompson, 26 Times Law Review, 252. But, even the ruling in Reg. v Smith did not go to the length of the contention urged before the Court that the whole of any statement made before the trial should be excluded from the jury if it once appeared that the prisoner gave it a general denial. That ruling conceded that if some part of the statement had been admitted, the statement itself need not be excluded from the jury, provided that they were warned that only so much of it could b e taken into consideration as they found to have been admitted by the prisoner. After quoting from the cases above cited, his Honor proceeded: So far as the omission by the prisoner’s counsel to take any exception to the evidence when tendered, was concerned, it would be seen from R. v Gibson, 18 Q.B.D, and R. v Bridgewater (1905), 1 KB, that, even when inadmissible evidence was received without objection, it was the duty of the judge to direct the jury to disregard it, and if he failed to do so, the mere want of objection at the time would not afterwards preclude the raising of the point, though if the Judge had so directed the jury, the want of objection would have that effect. Turning to the facts of the present case, it was true that there was little, if anything, in what was said by the constable, which could fairly be taken as any direct allegation that the prisoner was guilty of the offence. Most of it took the form of questions, which the jury were not likely to be misled into construing as evidence against the prisoner. But they would gather from it, when taken in connection with what was said by the boy, that the latter’s account of the occurrence had already been reported by him both to his mother and to the constable. Passing on to the answers given by the boy to the constable’s question, these, taken in connection with the questions themselves, clearly amounted to an allegation that the prisoner was guilty of the offence charged. And, though the learned Judge was careful to point out to the jury that in view of the prisoner’s denial of guilt, the verdict depended upon the question whether they believed the boy or not, they did not appear to have been sufficiently warned against the danger of treating the boy’s evidence in the box as being supplemented or confirmed by what was said by the constable, and by himself, on the occasion now in question. He was of opinion, therefore, that the conviction must be quashed.

    Mr Justice Cohen delivered a separate judgment, and, after reciting the facts, said that the learned Judge below stated that the second point assumed that he gave some direction to the jury equivalent to telling them that the statement (meaning that referred to in the conversation between the boy and the constable) was evidence against the accused, but that it was not a fact. He further stated that he did not in fact give the direction mentioned in the first ground, but that he had impliedly done so by telling them that the question of the prisoner’s guilt depended upon the evidence of the boy himself. Of the various authorities sited during argument there was R. v. Parker, 1901, 4 L.R., and 18 Weekly Notes, in which it was decided that a statement denied by a prisoner was not evidence of his guilt. Then, in the case of R. v Stevens (1904), 4 L.R., 727, a conviction was quashed because counsel for the prisoner was not permitted to interpose in the course of the evidence of a statement made in the presence of the prisoner, to ascertain whether the latter denied it. Although the question there raised was not the precise question raised in the present case, yet for the purpose of determining it, the Court relied upon the law as it conceived it to be laid down in R. v Smith, viz., that where an accused person denied a statement, the statement could not be received as evidence of his guilt. But this authority had come under review in R. v Bromhead, and in R. v Thompson before the Court of Criminal Appeal, and the result of these authorities appeared to him to be that where there was a denial of the statement and nothing more, the jury should be told not to draw any reference of guilt from it, but that where the whole or part of a statement was admitted to be true, whether directly or impliedly, or where there was otherwise a connected admission by accused as to his conduct in relation to the occurrence, or where the accused remained silent, it was for the jury to say to what extent the admissions or silence should operate against the accused. Yet, in every instance the statement was admissible in evidence. It did, however, seem to him that where the accusatory statement was altogether denied by the accused, and there was no connected admission by him, so that the jury would be told no to infer guilt from that statement, it would be fairer that, before the statement was placed before the jury, the presiding Judge should be informed of the denial, if necessary, on the voir dire, for once evidence was heard it might be difficult, if not impossible, to eradicate its effects from the mind, and justice, therefore, might not be done. For the foregoing reasons in view of the admissions by the prisoner, he did not think that the learned chairman of Quarter Sessions would have correctly directed the jury had he done so in terms of the first ground of appeal, but that the proper direction would have been in substance that adopted in the case R. v Bromhead, the attention of the jury being directed to the extent of the admissions made by the prisoner, as well as to his denial in relation to which they should be told that it was for them to determine how far his admissions went to establish his guilt, and that they should not draw any inference of guilt from the allegations in the statement, which had been denied, unless in their opinion the admissions might reasonably be regarded as qualifying the denial, and to the extent of that qualification, as laying a further foundation, if any, for drawing an inference of guilt from the statement. As to the second point, he thought his Honor was in error in not affirmatively warning the jury against accepting as evidence of guilt the statement made in the presence of the prisoner, but with the additional observations suggested as to ground one. The fact that his Honor told the jury that the question of the prisoner’s guilt depended on the evidence of the boy himself, although he did not give any direction equivalent to telling them that the statement was evidence against the accused was not sufficient for, not withstanding the existence of the one direction and the absence of the other, the jury, without their attention being called to the statement, and the manner in which it should b treated, might reasonably suppose that, being in evidence, it was within their competence to consider it, together with the other evidence, in determining the guilt of the prisoner. In his opinion, therefore, the conviction should be reversed.

    Mr Justice Gordon also concurred. The fact that no objection was taken to the Judge’s direction did not in his opinion, affect the question according to the principles laid down in R. v Gibson and other cases to which reference had been made. He had reluctantly come to the conclusion that there was a misdirection, or rather a nondirection, and that on the direction stated to have been given to the jury those gentlemen might have well considered themselves entitled in deciding whether they would or would not give credence to the sworn testimony of the boy to take into consideration as corroborative thereof the whole of the statements contained, or referred to, in the conversation between the boy and the constable, regardless whether the truth of the same was, or was not, directly or impliedly admitted by the accused.

    Appeal sustained and conviction quashed.

~ ~ ~ ~ ~

High Court of Australia Appeal 23

18/1910
IN THE HIGH COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY.

    Cor Griffith CJ, Barton, O’Connor & Isaacs JJJ

20 June 1910.

25 June 1910
Leave granted







Mentioned to Court by Mr Blacket So as not to prejudice appellant adjourned general

[Initial illegible] 20/6/10

IN THE MATTER of an Appeal to The Supreme Court of the State of New South Wales from the Judgment of His Honour Ernest Brougham Docker Chairman of Quarter Sessions in the said State upon the conviction before him at the Court of Quarter Sessions holden at Kempsey of Henry Grills

AND IN THE MATTER of the Special Case reserved by His Honour the said Ernest Brougham Docker Chairman of Quarter Sessions in the said State under Section 470 of the Crimes Act 1900

AND IN THE MATTER of the Judgment of the Supreme Court of New South Wales delivered in respect of the said Appeal on the twenty-fourth day of May AD 1910

AND IN THE MATTER of the Application of Charles Gregory Wade Esquire His Majesty’s Attorney General for the State of New South Wales to the High Court of Australia for Special Leave to Appeal from the said Judgment of the Supreme Court of New South Wales.


AFFIDAVIT ON APPLICATION FOR SPECIAL LEAVE TO APPEAL TO HIGH COURT.


DEPONENT – Henry Edington Moore. 

SWORN – 7th June, AD 1910

F  I  L  E  D
13 JUN. 1910
SYDNEY REGISTRY

 [Initial illegible]

Jno V [John Varnell] TILLETT
Crown Solicitor for the State of New South Wales
No. 18 of 1910

~ ~ ~ ~ ~

1

IN THE HIGH COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY.








IN THE MATTER of an Appeal to The Supreme Court of the State of New South Wales from the Judgment of His Honour Ernest Brougham Docker Chairman of Quarter Sessions in the said State upon the conviction before him at the Court of Quarter Sessions holden at Kempsey of Henry Grills

AND IN THE MATTER of the Special Case reserved by His Honour the said Ernest Brougham Docker Chairman of Quarter Sessions in the said State under Section 470 of the Crimes Act 1900

AND IN THE MATTER of the Judgment of the Supreme Court of New South Wales delivered in respect of the said Appeal on the twenty-fourth day of May AD 1910

AND IN THE MATTER of the Application of Charles Gregory Wade Esquire His Majesty’s Attorney General for the State of New South Wales to the High Court of Australia for Special Leave to Appeal from the said Judgment of the Supreme Court of New South Wales.

BEFORE Their Honours The Chief Justice, Mr Justice Barton, Mr Justice O’Connor and Mr Justice Isaacs –

    SATURDAY the twenty fifth day of June AD 1910.

UPON MOTION made this day before this Honourable Court

WHEREUPON AND UPON READING the Affidavit of Henry Edington Moore sworn herein on the seventh day of June instant AND UPON HEARING what was alleged by Mr Blacket of Counsel

~ ~ ~ ~ ~

2

for the said Charles Gregory Wade as such Attorney General as aforesaid IT IS ORDERED that the said Charles Gregory Wade as such Attorney General do have special leave to appeal to this Court from the Judgment of the Supreme Court of New South Wales pronounced herein on the twenty-fourth day of May last.

[Initial illegible]

By the Court,
[signed] Arthur G Saddington
Deputy Registrar, New South Wales.

~ ~ ~ ~ ~

IN THE HIGH COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY.

THE KING
-v-
HENRY GRILLS.


ORDER Granting Special Leave to Appeal.

F  I  L  E  D
30 JUN. 1910
SYDNEY REGISTRY

JNO V TILLETT,
Crown Solicitor.

~ ~ ~ ~ ~

IN THE HIGH COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY.







IN THE MATTER of an Appeal to The Supreme Court of the State of New South Wales from the Judgment of His Honour Ernest Brougham Docker Chairman of Quarter Sessions in the said State upon the conviction before him at the Court of Quarter Sessions holden at Kempsey of Henry Grills.

AND IN THE MATTER of the Special Case reserved by His Honour the said Ernest Brougham Docker Chairman of Quarter Sessions in the said State under Section 470 of the Crimes Act 1900

AND IN THE MATTER of the Judgment of the Supreme Court of New South Wales delivered in respect of the said Appeal on the twenty-fourth day of May AD 1910

AND IN THE MATTER of the Application of Charles Gregory Wade Esquire His Majesty’s Attorney General for the State of New South Wales to the High Court of Australia for Special Leave to Appeal from the said Judgment of the Supreme Court of New South Wales.

I, HENRY EDINGTON MOORE of Sydney in the said State Clerk being duly sworn make oath and say as follows:–

1.  I am a Clerk employed in the Office of the Crown Solicitor of the said State and have the conduct of this matter.

[Signed] HE Moore
Deponent

[Signed] DR Jamieson
Justice of the Peace

~ ~ ~ ~ ~

2.  THE above named Henry Grills was indicted before the Court of Quarter Sessions holden at Kempsey on the fifth day of April last past before His Honour Ernest Brougham Docker Chairman of the said Sessions for that he the said Henry Grills on the second day of March in the hear One thousand nine hundred and ten at Unkya in the State of New South Wales did assault Horace Wood and then wickedly and against the order of nature carnally knew the said Horace Wood and did commit with the said Horace Wood the abominable crime of buggery AND on a second count that he the said Henry Grills on the day in the year and at the place last aforesaid indecently did assault Horace Wood a male person and was by the Jury found guilty of the said charge in the said first count And on the sixth day of April last past the said Henry Grills was sentenced by His Honour as such Chairman to seven years penal servitude.

3.  AT the request of Mr Hardiman Attorney appearing as Counsel for the accused certain points were before sentence reserved by His Honour and His Honour thereafter stated and signed a Special Case upon the said points for the consideration of the Judges of the Supreme Court in accordance with the provisions of Section 470 of the Crimes Act 1900.

4.  A COPY of the said Special Case is hereunto annexed and marked with the letter “A”. [see below]

5.  THE said case came on for hearing before the Supreme Court of New South Wales consisting of their Honours the Chief Justice, Mr Justice Cohen and Mr Justice Gordon and was heard on the sixth day of May last past, and on the twenty-fourth day of May the Court delivered Judgment reversing the Judgment appealed

IN THE HIGH COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY.

 

R -v- Grills.

    THIS is the Second Sheet of the Affidavit of Henry Edington Moore sworn herein this seventh day of June, AD 1910 Before me –

[Signed] HE Moore
Deponent

 [Signed] DR Jamieson
Justice of the Peace

~ ~ ~ ~ ~

from and quashing the said conviction.

6.  A COPY of the reasons given by their Honours in delivering the said Judgment as reported in the “Sydney Morning Herald” of the 25th May last is hereunto annexed and marked with the letter “B”. [see above]

7.  CHARLES GREGORY WADE Esquire His Majesty’s Attorney General for the State of New South Wales is desirous of appealing to this Honorable Court against the said Judgment of the Supreme Court of New South Wales in the said case.

8.  THE questions of law decided in this case are of great and general importance, and are certain to occur frequently in the trial of criminal cases, and the judgment and the reasons upon which it was based will greatly affect the administration of the criminal law.

9.  THE matters of fact herein stated are true to the best of my information and belief and were ascertained by me from the depositions and documents which have come to my hands in the conduct of this matter.

SWORN by the said Henry Edington
Moore at Sydney in the State
aforesaid on this Seventh day
of June AD 1910 Before me – 

 

[Signed] HE Moore

[Signed] DR Jamieson
A Justice of the Peace.

In the High Court of Australia
NEW SOUTH WALES REGISTRY.

 

 

R v Grills – Third Sheet.

~ ~ ~ ~ ~

“A”.

IN THE SUPREME COURT
OF NEW SOUTH WALES

 

 

REX versus HENRY GRILLS.

      SPECIAL CASE reserved for the consideration of Their Honours the Judges of the Supreme Court.

    This prisoner was tried before me at the Kempsey Quarter Sessions, April 5th, 1910, on a charge of having committed an unnatural offence upon a boy. He was convicted and was sentenced to seven years penal servitude.

    It is fortunately not necessary to set out the whole of the disgusting evidence which was given in the case. The points reserved refer solely to the evidence of the arresting Constable, George Grove. His evidence so far as it is relevant to the points taken was as follows:–

    “On March 4th (two days after the alleged offence) I had a conversation with the accused where he was camped with his cart 300 yards from Mrs Wood’s residence. Horace Wood was present. After some preliminary questions I said to the accused ‘Do you know this boy?’ Accused replied ‘Yes, he has been here before.’ I said to Horace Wood ‘Do you know this man?’ He replied ‘Yes.’ ‘Is this the man that pulled you into the cart, pulled our trousers down and assaulted you?’ ‘Yes.’ Accused said ‘Assaulted him! It’s the first I’ve heard of it.’ I said ‘A complaint has been made that you pulled the boy into your cart, pulled his trousers down and committed and unnatural

IN THE HIGH COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY

 

Rex versus Henry Grills.

This is the First sheet of the annexure marked “A” referred to in the affidavit of Henry Edington Moor sworn before me this Seventh day of June AD 1910.

[Signed] HE Moore
Deponent.

[Signed] DR Jamieson
Justice of the Peace.

~ ~ ~ ~ ~

offence upon him.’ Accused said ‘When was this supposed to happen?’ I said ‘On Wednesday afternoon last between four and six.’ Accused said ‘ I was washing when the boy came to the cart. I got up to go to the cart for my pipe and tobacco. The boy climbed up on the nave of the wheel, I tickled him a bit – that was all.’

    I said ‘I’m going to ask the boy in front of you what he told me and you can hear for yourself what he says.’ ‘Did this man pull you into the cart and pull your trousers down?’ The boy said ‘Yes.’ Accused said ‘That’s not a fair way of asking him, you a rehearsing his statement. Let me ask him.’ I said ‘Go on.’ Accused looked at him and said ‘Do you say that I pulled your trousers down?’ The boy did not answer. Accused again said ‘Do you say that I pulled your trousers down?’ The boy replied ‘No, a button came off and they fell down.’ I said ‘The boy is frightened. Horace, is it true what you told your mother and what you told me last night?’ The boy replied ‘Yes.’ I said ‘Don’t be frightened – tell the truth. Did this man pull your trousers down or did a button come off and they fell down?’ The boy replied ‘He pulled them down.’ Accused said ‘Oh! They have made up a tale between them.’

    I said ‘Did you give the boy a bunch of grapes?’ Accused said ‘Yes, I gave him two bunches.’ ‘Did you give him sixpence – two threepenny pieces?’ ‘Yes.’ ‘What did you give him the sixpence for?’ ‘To buy a melon; he told me his mother sold melons.’

    I then charged the Accused with having committed an unnatural offence upon the boy. Accused replied ‘I deny everything.’ I said ‘Were you wearing on Wednesday last

IN THE HIGH COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY

 

Rex versus Henry Grills.

This is the Second Sheet of the annexure marked “A” referred to in the affidavit of Henry Edington Moore sworn before me this Seventh day of June AD 1910.

[Signed] HE Moore
Deponent.

[Signed] DR Jamieson
Justice of the Peace.

~ ~ ~ ~ ~

the shirt and trousers you have on now?’ Accused replied ‘I think so. Why? Anything wrong with description or dress?’ I said ‘That’s all right.’ Accused said ‘Why didn’t the boy sing out? There was a man passed by in a sulky, and a man working in a paddock over here. I want them as witnesses.’ I said the boy cried. Accused said ‘He didn’t cry here.’

    Next morning I said to Accused in the Lockup ‘You spoke about some witnesses; tell me who they are and what you want, and I’ll do what I can.’ Accused said ‘I don’t think they would be any good to me. I don’t think I need them. I want to see a Solicitor.

    In cross-examination the witness said that the Accused may have used the words ‘I deny doing anything to the boy.’

    The boy, Horace Woods nine years old, gave evidence as to the conduct of the Accused, and medical evidence of the result of an examination on the night of March 4th was also given.

    In directing the Jury I told them that the only persons who could speak directly to the occurrences of the afternoon of March 2nd were the boy Horace Wood and the accused himself; that the evidence of the boy, if true, proved that a criminal assault had been committed upon him by the Accused; that the Accused in the statement which he had made to the Jury, and also in his statement to the Constable when charged, denied that he had committed any such assault and that therefore their verdict depended upon the question whether they believed the boy or not, and I told them that unless they were satisfied as to the truth of the boy’s evidence they ought to acquit the accused.

IN THE HIGH COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY

 

Rex versus Henry Grills.

This is the Third sheet of the annexure marked “A” referred to in the affidavit of Henry Edington Moore sworn before me this Seventh day of June AD 1910.

[Signed] HE Moore
Deponent.

[Signed] DR Jamieson
Justice of the Peace.

~ ~ ~ ~ ~

    I pointed out that the medical evidence was corroborative of the boy’s evidence as to his having been assaulted by some person and that the statements of the accused to the Constable as to Horace Wood having climbed on the cart and as to tickling him were corroborative of the boy’s evidence that it was the accused who had assaulted him. I made no further references to the Constable’s evidence as I had placed before the Jury the case as detailed by the boy himself.

    The Attorney for the Accused, Mr Hardiman, took no exception to my summing up, nor did he ask me to give any direction to the Jury; but the next day when the prisoner was called up for sentence he asked me to reserve the following points for the consideration of the Judges of the Supreme Court.–

1.  That His Honor should have directed the Jury that the statements made by Constable Grove in the presence of the accused tending to implicate him in the crime and denied by him were not evidence against him of his guilt;

2.  That His Honor allowed statements made in the presence of the accused and denied by him as false to go to the jury as evidence against the accused.

    I am compelled by law to reserve points at the request of the prisoner’s Counsel and to state a case accordingly, but I have to point out that an assumption of facts is involved in the statements of points which is not correct. The second point assumes that I gave some direction to the Jury equivalent to telling them that the statements referred to were evidence against the accused. That is not the fact.

    It is the fact that I did not give the direction mentioned in the first point. I was not asked to do so, nor

IN THE HIGH COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY

 

Rex versus Henry Grills.

This is the Fourth sheet of the annexure marked “A” referred to in the affidavit of Henry Edington Moore sworn before me this Seventh day of June AD 1910.

[Signed] HE Moore
Deponent.

[Signed] DR Jamieson
Justice of the Peace.

~ ~ ~ ~ ~

was any objection raised when the Constable gave his evidence; but I had impliedly given the Jury direction to the same effect by telling them that the question of the prisoner’s guilt depended upon the evidence of the boy himself.

    The question for the Judges of the Supreme Court is whether the Jury were properly and sufficiently directed by me.

(Sgd.) Ernest B Docker
Chairman of Quarter Sessions
20th April, 1910

IN THE HIGH COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY

 

Rex versus Henry Grills.

This is the Fifth sheet of the annexure marked “A” referred to in the affidavit of Henry Edington Moore sworn before me this Seventh day of June AD 1910.

[Signed] HE Moore
Deponent.

[Signed] DR Jamieson
Justice of the Peace.

~ ~ ~ ~ ~

IN THE HIGH COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY

Between

HIS MAJESTY KING GEORGE V
Appellant
— and —
HENRY GRILLS
Respondent

    ENTER this cause for trial on Monday the Fourteenth day of November19010 at the Court House, Darlinghurst, Sydney, before The High Court of Australia.

    DATED this twenty-sixth day of July AD 1910.

[Signed] Jno V Tillett
Crown Solicitor
Appellant’s Attorney

To: The District Registrar,
Sydney.

~ ~ ~ ~ ~

18/1910
IN THE HIGH COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY

THE KING

     –V–

HENRY GRILLS

NOTICE OF APPEAL

 

F  I  L  E  D
5 JUL. 1910
SYDNEY REGISTRY

JV Tillett
CROWN SOLICITOR

~ ~ ~ ~ ~

1.

IN THE HIGH COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY

ON APPEAL FROM THE SUPREME COURT OF
NEW SOUTH WALES

BETWEEN

HIS MAJESTY KING GEORGE V
APPELLANT

and

HENRY GRILLS
RESPONDENT

NOTICE OF APPEAL

    Take Notice that the Appellant herein by Special Leave of the High Court of Australia granted by an Order of the said Court of the Twenty fifth day of June in the year of Our Lord One thousand nine hundred and ten a copy of which Order is filed and served herewith, Appeal to the said Court from the whole of the Judgment of the Supreme Court of New South Wales given on the Twenty fourth day of May 1910 in the Matter of an Appeal by way of Special Case stated by His Honor Ernest Brougham Docker Chairman of Quarter Sessions in which Appeal the Respondent herein was the Appellant and the Appellant herein was Respondent, by which Judgment the Supreme Court upheld the said Appeal and quashed the conviction of the said Henry Grills AND FURTHER Take Notice that the Appellant herein Appeals upon the following grounds:–

1.  THAT the Jury were sufficiently and properly directed by His Honor.

2.  THAT the evidence as to the conversation with the Prisoner was admissible and no direction in respect of it was required.

3.  THAT a direction as to the weight or effect of evidence is required only when some rule of law has to be applied in the consideration of such evidence.

~ ~ ~ ~ ~

2.

4.  THAT a prisoner cannot complain that a direction which the Judge is not required by law to give, was not given, if no such direction was asked for before verdict.

5.  THAT as the evidence in question was admitted without objection and the Judge was not asked to withdraw it from the Jury it is too late to take exception to it after verdict.

6.  THAT under the Judgment of the Supreme Court a conviction founded upon admissible evidence has been quashed because His Honor did not give a direction which the law does not require him to give, and which he was not asked to give by Counsel for the Prisoner.

DATED the

Fifth day of July AD 1910
[Signed] Jno V Tillett
Crown Solicitor
Attorney for the Appellant

~ ~ ~ ~ ~

The Sydney Morning Herald, Tue 21 Jun 1910 24

LAW REPORT.
———◦———
HIGH COURT OF AUSTRALIA.
(Before Sir Samuel Griffith, CJ, Justice Sir
Ed Barton, Mr Justice O’Connor, and
Mr Justice Isaacs.)

THE CASE OF HENRY GRILLS.

    Mr Blackett, for the New South Wales Attorney-General, asked leave to mention the intention of the Attorney-General to apply for special leave to appeal from the judgment of the State Supreme Court whereby certain questions were answered, and the conviction of Henry Grills, who had been found guilty by a jury of a certain offence, was quashed.

    Counsel said that 27 days had elapsed since the judgment was delivered.

    The matter was adjourned for a week.

~ ~ ~ ~ ~

The Sydney Morning Herald, Mon 27 Jun 1910 25

LAW REPORT.
———◦———
HIGH COURT.
(Before the Chief Justice, Mr Justice Barton,
Mr Justice O’Connor, and
Mr Justice Isaacs.)

ADMISSIBILITY OF EVIDENCE.

Rex v. Grills.

    Mr Blacket, instructed by the Crown Solicitor (Mr JV Tillett), appeared for the Crown, and moved for special leave to appeal against the decision of the State Full Court quashing the conviction of Henry Grills, who had been convicted at the Quarter Sessions of a criminal assault. Counsel explained that the main ground upon which the Full Court had set aside the conviction was that certain evidence as to the conversation between a boy, who was said to have been the victim of the assault, and a constable, was inadmissible. The Crown contended that this ruling was incorrect.

~ ~ ~ ~ ~

The Sydney Morning Herald, Wed 16 Nov 1910 26

LAW NOTICES.
———
Wednesday, November 16.
———
High Court of Australia.

    At Darlinghurst.—At 10.30 am—For hearing: Newis v General Accident, Fire, and Life Assurance Corporation Ltd (part heard); the King v Henry Grills; McLachlan v de Lauret.

~ ~ ~ ~ ~

The Sydney Morning Herald, Fri 18 Nov 1910 27

LAW REPORT.
———◦———
HIGH COURT.
(Before Sir Samuel Griffith, Chief Justice, and
Justices Barton, O’Connor, and Isaacs.)

The Crown v. Grills.

    Mr Blacket, instructed by the Crown Solicitor, appeared for the appellant, the Crown; Mr Young, instructed by Mr JW Maund (agent for Mr LJ Hardiman, of Kempsey), for the defendant respondent, Henry Grills.

    This was an appeal from a decision of the Supreme Court of New South Wales quashing the conviction, before Judge Docker and a jury at the Kempsey Quarter Sessions, in April, 1910, of Henry Grills, who was charged with committing an offence against a boy. The jury found Grills guilty, and the Judge sentenced him to seven years’ penal servitude. A special case was afterwards stated for the Supreme Court, the grounds of appeal being that the Judge should have directed the jury that the statements made by the arresting constable in the presence of the accused tending to implicate him in the crime, and denied by him, were not evidence against him of his guilt; that his Honor allowed statements made in the presence of the accused, and denied by him as false, to go to the jury as evidence against the accused. The Supreme Court quashed the conviction, holding that the jury had not been sufficiently warned against the danger of treating the boy’s evidence in the box as being supplemented or confirmed by what was said by the constable and by himself on the occasion in question. The Crown then appealed to the High Court on the grounds, among others, that the jury was sufficiently and properly directed, and that as the evidence in question was admitted without objection, and the Judge was not asked to withdraw it from the jury, it was too late to take exception to it after the verdict.

    Judgment was reserved.

~ ~ ~ ~ ~

High Court of Australia Judgment – The King and Henry Grills, 30 Nov 1910 28

The King   Appellant;
  And  
Henry Grills   Respondent.

On Appeal From the Supreme Court of New South Wales.

    Criminal Law—Statement made in presence of prisoner—Denial by Prisoner—Admissibility—Misdirection.

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p. 400

[1910. 11 C.L.R.]

High Court of Australia.
H. C. of A. 1910. Sydney, Nov. 17, 30.
GRIFFITH CJ, BARTONn, O’CONNOR and ISAACS JJ.

    A prisoner was convicted of an unnatural offence upon a boy. Evidence was given on behalf of the Crown by the arresting constable of a conversation between the constable, the boy, and the prisoner, before his arrest, in which the boy, in answer to questions put to him, charged the prisoner with the commission of the offence, and the prisoner asserted his innocence. This evidence was not objected to. The boy subsequently gave independent evidence of the commission of the offence by the prisoner, and there was independent evidence that an assault of the kind alleged had been committed upon the boy. In his summing-up the Judge directed the jury that the evidence of the boy if true proved that an assault had been committed upon him by the prisoner; that the prisoner in his statement to the jury, and also in his statement to the constable denied the charge; and that unless they were satisfied of the truth of the boy’s evidence they should acquit. No exception was taken to this direction when it was given, but after verdict the objection was taken that the jury should have been directed that statements made in the prisoner’s presence and denied by him were not evidence of his guilt.

    Held, that evidence of the statements made in the prisoner’s presence was properly admitted.

    Held, also, by Griffith CJ, Barton J., and O’Connor J. (Isaacs J. dissenting), that under the circumstances of the case the direction given to the jury was sufficient, and that the conviction should be sustained.

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H. C. of A. 1910. The King v. Grills.

    Per Griffith CJ—When evidence has been given of an unsworn statement made in the presence of the accused, whether in the course of conversation or not, if the circumstances of the case suggest a danger that the jury may regard the statement as independent evidence of the facts alleged in it, the jury should be cautioned against giving it any such effect. Otherwise such a caution is unnecessary, and need not be given.

    Per O’Connor J.— In criminal cases objection may be taken by the prisoner at any time before sentence to a misdirection or non-direction of the Judge at the trial, although no exception was taken to the direction during the course of the trial.

    R. v. Gibson, 18 Q.B.D., 537, and R. v. Norton, (1910) 2 KB, 496, considered.

    Decision of the Supreme Court: R. v. Grills, 10 S.R. (N.S.W.), 309; 27 W.N. (N.S.W.), 95, reversed.

    APPEAL, by special leave, from the decision of the Full Court quashing a conviction upon a special case stated by Judge Docker, Chairman of Quarter Sessions at Kempsey.

    The case stated was as follows:—

    “This prisoner was tried before me at the Kempsey Quarter Session, 5th April 1910, on a charge of having committed an unnatural offence upon a boy. He was convicted and sentenced to seven years’ penal servitude.

    “It is fortunately not necessary to set out the whole of the disgusting evidence which was given in the case. The points reserved refer solely to the evidence of the arresting constable, George Grove. His evidence, so far as it is relevant to the points taken, was as follows:—

    “On 4th March (two days after the alleged offence) I had a conversation with the accused where he was camped with his cart 300 yards from Mrs Wood’s residence. Horace Wood was present. After some preliminary questions I said to the accused, ‘Do you know this boy?’ Accused replied, ‘Yes he has been here before.’ I said to Horace Wood, ‘Do you know this man?’ He replied, ‘Yes.’ ‘Is this the man that pulled you into the cart, pulled your trousers down, and assaulted you?’ ‘Yes.’ Accused said, Assaulted him? It is the first I have heard of it.’ I said,’A complaint has been made that you pulled the boy into the cart, pulled his trousers down, and committed an unnatural offence upon him.’ Accused said, ‘When was this supposed to

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H. C. of A. 1910. The King v. Grills.

happen?’ I said, ‘On Wednesday afternoon last between four and six.’ Accused said, ‘I was washing when the boy came to the cart. I got up to go to the cart for my pipe and tobacco. The boy climbed on the nave of the wheel. I tickled him a bit—that was all.’

    “I said, ‘I am going to ask the boy in front of you what he told me, and you can hear for yourself what he says.’ ‘Did this man pull you into the cart, and pull your trousers down?’ The boy said, ‘Yes.’ Accused said, ‘That’s not a fair way of asking him; you are rehearsing his statement. Let me ask him.’ I said, ‘Go on.’ Accused looked at him and said, ‘Do you say that I pulled your trousers down?’ The boy did not answer. Accused again said, ‘Do you say that I pulled your trousers down?’ The boy replied, ‘No; a button came off and they fell down.’ I said, ‘The boy is frightened. Horace, is it true what you told your mother and what you told me last night?’ The boy replied, ‘Yes.’ I said, ‘Do not be frightened—tell the truth. Did this man pull your trousers down, or did a button come off, and they fell down?’ The boy replied, ‘He pulled them down.’ Accused said, ‘Oh, they made up a tale between them.’

    “I said, ‘Did you give the boy a bunch of grapes?’ Accused said, ‘Yes; I gave him two bunches.’ ‘Did you give him sixpence—two three penny pieces?’ ‘Yes.’ ‘What did you give him the sixpence for?’ ‘To buy a melon; he told me his mother sold melons.’

    “I then charged the accused with having committed an unnatural offence upon the boy. Accused replied, ‘I deny everything.’ I said, ‘Were you wearing on Wednesday last the shirt and trousers you have on now ?’ Accused replied, ‘I think so. Why? Anything wrong with description or dress?’ I said, ‘That is all right.’ Accused said, ‘Why did not the boy sing out? There was a man passed by in a sulky, and a man working in a paddock over here. I want them as witnesses.’ I said the boy cried. Accused said, ‘He did not cry here.’

    “Next morning I said to accused in the lock-up, ‘You spoke about some witnesses; tell me who they are, and what you want, and I will do what I can.’ Accused said, ‘I do not think they

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would be any good to me. I do not think I need them. I want to see a solicitor.’

    “In cross-examination the witness said that the accused may have used the words, ‘I deny doing anything to the boy.’

    “The boy, Horace Wood, 9 years old, gave evidence as to the conduct of the accused, and medical evidence of the result of an examination on the night of 4th March was also given.

    “In directing the jury, I told them that the only persons who could speak directly as to the occurrences of the afternoon of 2nd March were the boy Horace Wood and the accused himself; that the evidence of the boy, if true, proved that a criminal assault had been committed upon him by the accused; that the accused in the statement which he made to the jury, and also in his statement to the constable when charged, denied that he had committed any such assault; and that, therefore, their verdict depended upon the question whether they believed the boy or not, and I told thorn that unless they were satisfied as to the truth of the boy’s evidence they ought to acquit the accused.

    “I pointed out that the medical evidence was corroborative of the boy’s evidence as to his having been assaulted by some person, and that the statements of the accused to the constable as to Horace Wood having climbed on the cart and as to tickling him were corroborative of the boy’s evidence that it was the accused who had assaulted him. I made no further reference to the constable’s evidence as I had placed before the jury the case as detailed by the boy himself.

    “The attorney for the accused, Mr Hardiman, took no exception to my summing up, nor did he ask me to give any direction to the jury; but the next day when the prisoner was called up for sentence he asked me to reserve the following points for the consideration of the Judges of the Supreme Court:

    “1. That his Honor should have directed the jury that the statements made by Constable Grove in the presence of the accused tending to implicate him in the crime, and denied by him, were not evidence against him of his guilt.

    “2. That his Honor allowed statements made in the presence of the accused, and denied by him as false, to go to the jury as evidence against the accused.

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    “I am compelled by law to reserve points at the request of prisoner’s counsel, and to state a case accordingly; but I have to point out that an assumption of facts is involved in the statement of points which is not correct. The second point assumes that I gave some direction to the jury equivalent to telling them that the statements referred to were evidence against the accused. That is not the fact.

    “It is the fact that I did not give the direction mentioned in the first point. I was not asked to do so, nor was any objection raised when the constable gave his evidence; but I had impliedly given the jury a direction to the same effect by telling them that the question of the prisoner’s guilt depended upon the evidence of the boy himself.

    “The question for the consideration of the Judges of the Supreme Court is whether the jury were properly and sufficiently directed by me.”

    The Supreme Court held that the evidence of the conversation between the constable, the prisoner, and the boy was admissible, but that the jury should have been directed that any portion of a statement made in the prisoner’s presence which in their opinion was not admitted by the accused to be true, should be discarded from their consideration when deciding whether the prisoner was guilty of the offence with which he was charged. They therefore upheld the objection and quashed the conviction (1).

    Blacket, for the appellant. The whole of the conversation between the prisoner and the boy and the constable was admissible for all purposes as evidence in the case against the prisoner. The prisoner took an active part in this conversation, and adopted some of the statements previously made by the boy to the constable. It would have been improper for any part of the conversation to have been excluded from the jury’s consideration. R. v. Gibson (2), which was relied upon in the Court below, is distinguishable, as in that case inadmissible evidence was pressed against the prisoner after objection. In R. v. Thompson (3), following R. v. Bromhead (4), it was held that a statement

(1) 10 S.R. (N.S.W.), 309.
(4) 71 J.P., 103.
 (2) 18 Q.B.D., 537.  (3) (1910) 1 KB, 640.

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made by one person, and read over to the prisoner, cannot be held to be inadmissible merely because the prisoner when it is read over to him denies it, though it is a matter for the jury to determine what weight should be attached to it. The point actually decided in R. v. Norton (1) is not in conflict with these decisions, and the dicta in that case, in so far as they are at variance with R. v. Thompson (2), should not he followed. Assuming the evidence was admissible, as the Judges of the Supreme Court have held it to be, the Chairman, in directing the jury, has gone further than he need have done in the prisoner’s favour. He clearly pointed out to the jury that there was a direct conflict between the boy’s statement and the prisoner’s denial of it, and that it was for them to decide which they believed. Counsel for a prisoner cannot allow a question to be put without objection, and then ask the Court to set aside the conviction on the ground of the inadmissibility of the evidence: R. v. Bridgwater (3); Prudential Assurance Co. v. Edmonds (4); Seaton v. Burnand (5); Mutual Life Insurance Co. of New York v. Moss (6). In considering whether in any particular case the jury have been properly directed, regard must be had to the way in which the case was conducted at the trial. The Judge is entitled to assume that the jury are reasonably intelligent, and in this case there was nothing unfair or misleading in the direction given. There was no reasonable probability that the jury would regard the statements made in the prisoner’s presence as independent evidence of his guilt.

    Young, for the respondent. Statements not on oath made in the presence of a prisoner are only admissible as evidence of the facts stated so far as the jury find that the prisoner, by his words or conduct, has admitted them to be true. The evidence is admitted provisionally in the first instance, and it is then for the jury, upon a proper direction, to determine whether the prisoner has acknowledged the truth of any portion of the statements. It is necessary that they should he expressly directed that, unless they find lie has done so, they should discard the

(1) (1910) 2 KB, 496.
(4) 2 App. Cas., 487, at p. 507.
(2) (1910) 1 KB, 640.
(5) (1900) A.C., 135, at p. 145 . 
 (3) (1905) 1 KB, 131.
(6) 4 C.L.R., 311.

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H. C. of A. 1910. The King v. Grills.

evidence. If evidence of statements made in the presence of the prisoner is allowed to go before the jury, it must be accompanied with its proper antidote. The dicta in R. v. Norton (1) are directly applicable to the facts at this case, and are consistent with the previous cases. Evidence of the triangular dialogue between the prisoner, the constable, and the boy was left to the jury at large, and uncoupled with any express direction that the jury could only regard it as evidence of the facts stated, to the extent that they found that the prisoner had admitted them to be true. Until, upon proper direction, they have so found, the statements did not become evidence in the case generally. Evidence of complaints made by the girl assaulted in cases of rape, which are not evidence of the prisoner’s guilt, are analogous. So also in cases of divorce, where evidence is given of admissions of adultery by the wife, it is the duty of the Judge to tell the jury that they are not evidence against the co-respondent. The statements put into the mouth of the boy by the constable in this case, as to which the boy himself could not have given evidence, illustrate the necessity of such a direction being given. Here the jury were not expressly warned that what the boy said to the constable in the presence of the prisoner was not necessarily evidence of his guilt, and the facts were such that in order to guide the jury properly such a direction should have been given. The fact that the direction was not asked for at the trial does not affect the prisoner’s right to take the objection.

    Blacket, in reply.

Cur. adv. vult.

    The following judgments were read:— November 30.

     GRIFFITH  CJ. This is an appeal by special leave from a decision of the Supreme Court of New South Wales quashing a conviction upon indictment for an aggravated assault on a boy on the ground of non-direction. There was independent evidence that an assault of the kind alleged had been committed upon the boy by some one. The substantial question to be tried was one

(1) (1910) 2 KB, 496, at p. 500.    

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H. C. of A. 1910. The King v. Grills. Griffith CJ

of identity. The arresting constable was called as a witness for the prosecution, and deposed to a conversation between himself, the accused, and the boy at the time of the arrest, in the course of which the accused admitted that he was in the boy’s company at the relevant time, and had “tickled” him and had afterwards given him money, but denied the circumstances of aggravation. During the conversation the constable said to the boy “Is it true what you told your mother and what you told me last night?” to which the boy replied, “Yes.” What he had told his mother and told the constable does not appear in the case, but may be readily conjectured. Nor is it stated whether the mother and the constable gave any, or if any, what evidence of a complaint having been made to them by the boy. No point is raised to which these facts would be relevant, but, if the prosecution was conducted in the ordinary way, the fact, at least, of a complaint would have been proved. The learned Chairman of Quarter Sessions directed the jury “that the only persons who could speak directly as to the occurrences of the afternoon of 2nd March were the boy … and the accused himself; that the evidence of the boy, if true, proved that a criminal assault had been committed upon him by the accused; that the accused in the statement which he had made to the jury, and also in his statement to the constable when charged, denied that he had committed any such assault; and that, therefore, their verdict depended upon the question whether they believed the boy or not, and I told them that unless they were satisfied as to the truth of the boy’s evidence they ought to acquit the accused.”

    He also told them that “the statements of the accused to the constable as to Horace Wood (the boy) having climbed on the cart and as to tickling him were corroborative of the boy’s evidence that it was the accused who had assaulted him.”

    No objection was made to the admission of the evidence of the conversation or to the direction, but after verdict the accused’s advocate asked that the following points might be reserved for the consideration of the Supreme Court:—

1. “That his Honor should have directed the jury that the statements made by Constable Grove in the presence of the accused

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tending to implicate him in the crime, and denied by him, were not evidence against him of his guilt.”

2. “That his Honor allowed statements made in the presence of the accused, and denied by him as false, to go to the jury as evidence against the accused.”

    The Supreme Court were of opinion that the evidence was properly admitted, and there can be no doubt as to the correctness of that opinion. But they thought that the direction was defective in that it did not warn the jury against giving any independent weight to the statements made by the constable and by the boy in the presence of the accused as corroborative of the boy’s sworn testimony.

    The respondent’s counsel referred to the observations of Lord Blackburn in his speech in Prudential Assurance Co. v. Edmonds (1):— “So far as a statement of law is necessary to give a proper guide to the jury upon the case, the Judge should state it; and, although it is generally said, and said truly, that non-direction is not a subject of a bill of exceptions, yet when the facts are such that in order to guide the jury properly there should be a direction of law given, the not giving that direction of law would be a subject for a bill of exceptions and would be a ground for a venire de novo.” The learned Lord had said just before: “It is a mistake in practice, and an inconvenient one, which very learned Judges have fallen into, of thinking it necessary to lay down the law generally, and to embarrass the case by stating to the jury exceptions and matters of law which do not arise upon the case. That is not the duty of the Judge at all, and I think it is better not to do it.” I accept this statement of the Judge’s duty. Whether, therefore, a particular direction should be given must depend upon the nature and circumstances of the case. If a particular direction is necessary under the circumstances of the case it should be given, otherwise it should not be given.

    The learned Judges of the Supreme Court, applied the analogy of a statement, not on oath, made by a person not called as a witness and read to the accused. The fact that such a statement has been read is often admissible in evidence, and the reason for

(1) 2 App. Cas., 487, at p. 507.

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its admissibility is well known. The statement itself is not evidence of the facts alleged in it. The evidentiary fact consists in the conduct of the accused when it is read to him, whether by way of spoken words, which may amount to an admission or denial in whole or part, or by silence. The circumstances of the case may show that such conduct is evidentiary of some fact relevant to the question of his guilt, e.g., his untrue denial of some relevant fact proved aliunde. 29 If it is not evidentiary of any such fact the evidence is irrelevant, and inadmissible on that ground. If the presiding Judge were to allow the statement to go to the jury as independent evidence there would be a mis-trial. The same general principle applies to any oral statement made to or in the presence of the accused, and to conversations with him. It is common knowledge to all who are conversant with the administration of criminal law—and I may claim some familiarity with it—that in a very large proportion of cases evidence of conversations with the accused is given, and necessarily given. It is equally common knowledge that it has never been the practice of Judges to caution the jury not to attach independent weight to a statement made by one party to such a conversation and denied by the accused, unless the circumstances of the case are such as to call for such a caution.

    In my opinion the true rule, which is a rule of common sense as well as of law, is this:—

    When evidence has been given of an unsworn statement made in the presence of the accused, whether in the course of conversation or not, then, if the circumstances of the case are such as to suggest a danger that the jury may think that the statement should be treated as independent evidence of the facts alleged in it, the Judge should caution the jury against giving it any such effect. If, on the other hand, the circumstances of the case do not suggest any such danger, he need not do so.

    The test in each case is the necessity, which can only be ascertained by considering the circumstances of the particular case. There is no authority to be found inconsistent with this rule. All the learned Judges in the Supreme Court referred to the case of R. v. Gibson (1), a case winch has been much misunderstood

(1) 18 Q.B.D., 537.

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owing to the erroneous, or at least ambiguous, wording of the head-note. In that case evidence had been given without objection of an oral statement not made in the hearing of the prisoner. In summing up the Chairman of Quarter Sessions specially directed the attention of the jury to the statement. Before verdict the prisoner’s counsel objected that it should not have been left to the jury, but the Chairman refused to withdraw it from their consideration. Under these circumstances the verdict manifestly could not stand. But the case has been cited as an authority for the position that if any inadmissible evidence is “left” to—in the sense of not expressly withdrawn from—the jury, the conviction is bad. What was really decided was that if the jury are expressly invited to take inadmissible evidence into consideration the conviction is bad. It happens, I suppose, in innumerable cases that, by inadvertence, irrelevant evidence (which, strictly speaking, is not admissible) is admitted, and passes without notice and without mischief. But there is no case which decides that a conviction is necessarily bad on the ground that the jury had not been expressly directed to disregard such evidence.

    Reg. v. Gibson (1), however, has no application to the present case, in which the evidence was properly admitted.

    The learned Judges also referred to the cases of R. v. Smith (2); R. v. Bromhead (3); and R. v. Thompson (4). Those were all cases upon the admissibility of evidence, and not upon misdirection or non-direction. R. v. Smith (2) was overruled by R. v. Thompson (4), in so far as it was a decision that a statement denied by the accused is necessarily inadmissible. Before us reference was also made to the case of R. v. Norton (5), reported since leave to appeal was given. The only point actually decided in that case was that statements made in the presence of the accused and denied by him could not be treated as substantive evidence of the facts so denied. The learned Commissioner (now Scrutton J.) had invited the jury to give weight to such statements as substantive evidence, and an appeal from the conviction was of course allowed. But the learned Judges proceeded to

(1) 18 Q.B.D., 537.
(4) (1910) 1 KB, 64.
(2) 18 Cox C.C., 470.
(5) (1910) 2 KB, 496. 
 (3) 71 J.P., 103.

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express their opinion obiter upon several other points. First, they referred to the principle which I have already stated on which evidence is admissible of statements made in the presence of an accused person. They then expressed an opinion as to the procedure which should be adopted with regard to such statements before admitting them in evidence, applying in effect the principle which is followed with regard to dying declarations. As to this there would seem to be some difficulty in reconciling the suggested rule with the cases of R. v. Bromhead (1) and R. v. Thompson (2); and it is obvious that, if applied to evidence of conversations as distinct from unsworn statements read to the accused, it would impose conditions impossible of observance in the practical administration of the law. Finally, they expressed an opinion as to what would be the proper direction to be given to the jury with respect to such unsworn statements.

    I have no comment to make upon the suggested direction as one to be given when the circumstances of the case render it necessary. But the rule laid down has no application to a case where the circumstances are not such as to suggest that the jury are likely to treat the statement as independent evidence of the facts stated. Moreover the learned Judges were dealing with the case before them, and not with the every-day case of conversations with accused persons on the occasion of their arrest.

    I do not think that anyone would be more surprised—perhaps not without amusement—than the learned Judges who were parties to the decision in R. v. Norton (3) to hear that they had laid down a general rule applicable to all cases in which any evidence is given of a conversations with an accused person in which an assertion is made in his presence and denied by him; so that if, for instance, at the trial of a man charged with stealing from the person, evidence were given that the accuser gave the accused into custody, saying to a constable, “This man has picked my pocket,” and that the accused then denied the charge, the presiding Judge would be bound expressly to direct the jury that they must not attribute any independent weight to the statement so made, and that in the absence of such a direction there would be a mistrial and the conviction should be quashed. Ever

(1) 71 J.P., 103. (2) (1910)1 KB, 640. (3) (1910) 2 KB, 496.

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since I have had the honour to occupy this seat I have tried—Ido not know with what success—to dispel the notion that the law—I am not speaking of the Statute law—is a mysterious esoteric science which can only be understood by initiates, and to show that it is a system founded on broad principles of common sense applicable to the everyday conditions of civilized life. Applying such principles to the present case there can, in my judgment, be no doubt as to the result.

    The boy, to whose unsworn statements in the presence of the accused it is sought to apply the rule, was sworn as a witness. In my opinion the suggestion that any jury might have, thought that those unsworn statements, denied by the accused when made, could be regarded as adding anything to the weight of his sworn evidence is quite unreasonable. A caution may reasonably be given against a probable danger, but there is no need to caution against one which is wholly visionary and illusory. Moreover, the learned Chairman, so far from inviting the jury to give any such weight to the statements, expressly directed them that they had to decide between the boy’s sworn evidence and the defendant’s denial made both in the dock and when he was accused by the constable and the boy. If, therefore, the occasion was one which called for any explicit direction on the subject—and I think it was not—I think that such a direction was given in terms sufficient to prevent an error being committed by any reasonable men.

    For these reasons I am of opinion that the appeal should be allowed and the conviction restored.

    I have confined my judgment to the questions raised by the case reserved.

    Barton J. In R. v. Norton (1) the Commissioner who tried the case (one of carnally knowing a girl under the age of 13 years) had, in effect, directed the jury to take into consideration the girl’s statement as evidence of the facts contained in it (though she was not called as a witness), and to consider whether, looking at all the circumstances, they accepted it or the prisoner’s denial. The matter was therefore put to them in such a way as would not

(1) (1910) 2 KB, 496, at p. 499.

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have been proper unless she had given her testimony under the usual sanction. This was an express misdirection, and the Court of Criminal Appeal so held, “upon a point very material to the issue.” They made reference to the general rule that “statements as to the facts of a case under investigation are not evidence unless made by witnesses in the ordinary way.” One accepts without hesitation the proposition of the Court that “statements made in the presence of a prisoner upon an occasion on which he might reasonably be expected to make some observation, explanation, or denial … are … never evidence of the facts stated in them,” but are admitted “only as introductory to, or explanatory of, the answer given to them by the person in whose presence they are made,” whether such answer be given by words, or by conduct, such as remaining silent on an occasion which demands an answer. It is clear also that “if the answer given amount to an admission of the statements or some part of them, they or that part become relevant as showing what facts are admitted; if the answer be not such an admission, the statements are irrelevant to the matter under consideration and should be disregarded,” or in the words used in Taylor on Evidence, sec. 814, “the statements only become evidence when by such acceptance he makes them his own statements.”

    I have shortly stated the parts of the judgment material to the question which was immediately before their Lordships for decision. The question in the present case is one, not of mis-direction, but of non-direction. The points for the respondent are—first, that the learned District Court Judge erroneously omitted to direct the jury that the statements made in the presence of the accused by the constable, tending to implicate him in the crime, and denied by him, were not evidence against him of his guilt; and secondly, that his Honor allowed statements made in the presence of the accused, and denied by him as false, to go to the jury as evidence against the accused. The learned Judge admittedly gave no direction in the terms of the latter point, but the contention is that the omission to direct the jury that the statements denied were not evidence was equivalent to allowing them to go to the jury as evidence against the accused. That is, in my view, an unfounded contention, unless it is assumed that the jury

    vol. xi. 29.

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will probably treat statements denied by the accused as evidence against him unless they are expressly warned against doing so; and there is certainly no ground for such an assumption unless some principle or authority can be found to justify a primary assumption that juries in criminal cases are not endowed with as much intelligence as the generality of their fellow-citizens outside the box. I confess that I see no reason in this case why the Judge should have added a direction in the terms suggested to that which he tells us he actually gave. He, in effect, told the jury that as the accused, in his statement to the constable in the presence of the boy, denied that he had committed the offence, their verdict depended on the question whether they believed the evidence of the boy, given in the witness box, and that they ought to acquit the accused unless they were satisfied as to the truth of the boy’s evidence. He also pointed out that the medical evidence was corroborative of the boy’s evidence that someone had assaulted him, and mentioned to them the parts of the conversation with the constable in which the boy’s evidence was to some extent corroborated by the accused. This direction clearly amounted to telling the jury to confine themselves to a consideration of the sworn testimony of the boy with such corroboration as they found it to have received from medical evidence and any admission of the accused, and therefore to exclude from their minds other parts of the case, among which was the conversation with the boy and the constable. I do not think it possible for any ordinary jury to misunderstand such a direction. The objection therefore resolves itself into this, that, though they were directed in terms which not only drew their attention only to the evidence of the boy, but impressed on them that they should confine their attention to it, there had been a fatal non- direction because the Judge did not add to the unmistakable terms which he had used an express caution that the parts of the conversation in which the accused had denied what the constable said must be disregarded. On this argument it is not enough to say: “Here are A., B. and C.; look at A., and A. alone;” it is vitally necessary to add, “of course, if you look at A. alone, as I have told you to do, you will not look at B. and C.” To my mind, the argument is an attempt to set up a ridiculous position, which

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would add unnecessarily to the difficulties which already, and perhaps necessarily, surround the proof of crime. I do not find that any express direction, which the circumstances and the terms already used by the Judge render quite superfluous, has been forced upon Judges as the result of any one of the cases cited or even of any dictum they contain. Nothing so contrary to common sense has been laid down in those authorities. I think the appeal ought to be allowed.

    O’CONNOR J.  In this case the Supreme Court reversed the conviction on the ground that the learned Judge at the trial had failed to properly direct the jury.

    The principles upon which a Court of Appeal will revise a summing up on the ground of non-direction are well established, and have been expounded in several cases. I shall quote from two of them.

    In the Prudential Assurance Co. v. Edmonds (1) a Judge’s direction in a civil case was under consideration, but the foundation of the legal right to have the jury properly directed is the same in criminal as in civil cases. Lord Blackburn in delivering judgment says:— “I take it that when there is a case tried before a Judge sitting with, a jury, and there arises any question of law mixed up with the facts, the duty of the Judge is to give a direction upon the law to the jury, so far as is necessary to make them understand the law as bearing upon the facts before them. Farther than that, it is not necessary for him to go. It is a mistake in practice, and an inconvenient one, which very learned Judges have fallen into, of thinking it necessary to lay down the law generally, and to embarrass the case by stating to the jury exceptions and matters of law which do not arise upon the case. That is not the duty of the Judge at all and I think it is better not to do it. So far as a statement of the law is necessary to give a proper guide to the jury upon the case, the Judge should state it; and, although it is generally said, and said truly, that non-direction is not a subject of a bill of exceptions, yet when the facts are such, that in order to guide the jury properly there should be a direction of law given, the not giving that direction of law would be a subject

(1) 2 App. Cas., 487, at p. 507 .

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for a bill of exceptions and would be a ground for a venire de novo.”

    In criminal cases it is immaterial whether the Judge at the trial was or was not asked to direct the jury as it is claimed they ought to have been directed, or whether exception was taken to the direction before verdict. If the Judge has failed to direct the jury in accordance with the right of the accused, the point may be raised at any time before sentence, and when raised must be noted by the trial Judge and considered by the Court of Appeal. In Rex v. Stoddart (1) Lord Alverstone CJ delivered a reserved judgment of the Court of Criminal Appeal. In dealing with a point raised as to non-direction he makes some observations which are well worthy of consideration. He begins by quoting Lord Esher’s words in Abrath v. The North Eastern Railway Co. (2), as follows:—

    “It is no misdirection not to tell the jury everything which might have been told them: there is no misdirection, unless the Judge has told them something wrong, or unless what he has told them would make wrong that which he has left them to understand. Non-direction merely is not misdirection, and those who allege misdirection must show that something wrong was said or that something was said which would make wrong that which was left to be understood.”

    Lord Alverstone then goes on to say:— “Every summing up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively. This Court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed, or whether other topics which might have been dealt with on other occasions should be introduced. This Court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice. Its work would become well-nigh impossible if it is to be supposed that, regardless of their real merits or of their effect upon the result, objections are to be raised and argued at great length which were never

(1) 25 TLR, 612, at p. 617. (2) 11 Q.B.D., 440, at p. 453.  

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suggested at the trial and which are only the result of criticism directed to discover some possible ground for argument.”

    In applying these principles, two things are of vital importance, the real nature and effect of the evidence with respect to which it is alleged the jury were not properly directed, and the way in which the issues were presented to the jury for determination. My learned brother, the Chief Justice, having stated fully the facts material to be considered in this case, I shall not refer to them in detail. It will be noted that the statements of the boy and the constable, as to which it is said the jury should have been warned, were referred to in the course of a conversation between the constable, the accused, and the boy. The main subject of conversation was the boy’s visit to the cart of the accused and the occurrences on that occasion. The fact of the boy’s complaint to his mother and to the constable was mentioned by the latter, and was open to inquiry or comment, by the accused during the conversation, just as other subjects of the conversation were open. Neither the constable nor the boy said in the prisoner’s presence what it was the boy stated to his mother and to the constable. It may, however, be conceded that the jury might have reasonably inferred from the whole conversation that the statements amounted in substance to an accusation against the prisoner of having done that for which he was being tried. The constable’s account of the conversation makes it plain that the accused admitted the presence of the boy at the cart on the occasion referred to but it is equally plain that he stoutly denied any wrong-doing. The learned Judge put the case to the jury as involving only one issue—the credibility of the boy. He told them that unless they believed his story they must acquit the accused. His only reference to the conversation with the constable was to direct the jury’s attention to the corroboration of the boy’s story furnished by the admission of the accused that the boy had climbed on the cart and the accused had tickled him. The learned Judges of the Supreme Court held that the direction was insufficient in not warning the jury as to the way in which they should regard the conversation. Mr Justice Gordon puts the view of the Court definitely and

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clearly in these few words (1):— “In the case before us, I think the learned Judge was right in allowing to be given in evidence the conversation detailed by the constable between himself, the boy (Horace Wood), and the accused, but he was bound, clearly and distinctly, to tell the jury that in deciding on the guilt of the accused they were to pay no regard to any portion of the statements made, or referred to, in the above conversation, save as far as the truth of the same was in their opinion admitted by the accused, either directly or impliedly by his conduct.”

    In taking that view of the presiding Judge’s duty in the circumstances stated in the special case, the learned Judges, in my opinion, fell into an error, an error which—and I say it with all respect to them—seems to have arisen from their failing to recognize the dissimilarity between the kind of statements dealt with in the cases on which they have relied and the statements with which the special case was concerned.

    It is sometimes necessary in criminal cases to put before the jury evidence of a statement made in the presence of the accused in which there is an averment direct or indirect of the guilt of the accused, or of some fact or circumstance material to prove his guilt. A statement of that kind is tendered, not as having been made by the accused or authorized or assented to by him; it is admissible in evidence only as having been made or read in his presence. It is put forward, not as affording in itself any evidence that the facts stated are true, but to show what was the conduct of the accused on hearing it. On hearing the statement made or read he may admit, he may deny, he may correct, he may qualify its effect, he may remain silent—whatever course he takes his conduct on hearing the statement is the only fact which the evidence can establish. The facts proved in R. v. Thompson (2) illustrate that class of evidence.

    Two persons were accused jointly of burglary. A statement incriminating both was made to the police by one and afterwards read by the police to the other, who emphatically denied its truth. The statement was received in evidence, the presiding Judge warning the jury, both on its reception and in his summing up, that it must not be taken as affording any evidence against

(1) 10 S.R. (N.S.W.), 309, at p. 323. (2) (1910) 1 KB, 640.  

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the prisoner who denied its truth. The warning was obviously necessary to prevent the jury from being misled into taking the issue to be between the truth of the statement and the credibility of the accused in denying it. To decide guilt or innocence on that issue would be to put the statement itself on the footing of evidence against the accused, which it could not be, for he had not only not admitted it to be true, but had explicitly declared it to be untrue. Now there is another and very different class of case in which statements made in the presence of the accused are admissible—those in which a witness deposes to a conversation between the accused and himself on the subject of the crime or some fact relevant thereto. In such cases there is really an interchange of statements, and the accused may speak in admission, denial, or qualification of the other party’s statements as question and answer pass between them. Apart from the statutory protection from disclosure which the law throws round confessions of guilt made under certain circumstances, the details of such conversation are always admitted in evidence, and are as to parts of them admitted in reality on the same ground as the statements described in my first illustration. The only parts of the conversation which can be given effect to as evidence against the accused are his own statements, and those of the other party to which he has by voice or conduct assented. It is necessary, however, in order to understand what the accused has said, and to ascertain to what extent he has admitted or acquiesced in the statements of the other party, to put the whole conversation before the jury. It is possible that even in a case of that kind it may be necessary to specially warn the jury against allowing some particular statement detailed or mentioned in the conversation to weigh against the accused. But in the great bulk of cases the whole conversation is left to the consideration of the jury, without special direction as to the applicability of different portions of it to the issue of innocence or guilt. Generally speaking no other course is practicable. To ask the Judge in each case to separate those portions of the conversation which may be allowed to have effect against the accused from those which may not, is to impose on him a task often exceedingly difficult to perform adequately, and which if

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adequately performed would tend in most cases to confuse rather than help the jury to an understanding of their duty. There are passages in Mr Justice Pickford’s judgment in R. v. Norton (1) which would appear at first sight to favour the view that the law imposes some such obligation on the Judge presiding at a criminal trial. But when the real question to be determined in that case is looked at, it will be found that the judgment as a whole cannot be used as an authority in support of that view. In the two illustrations I have given I have placed side by side the instance in which a special warning to the jury is obviously one of the rights of the accused, and the instance in which it is equally obvious that he is entitled to no such right. In the actual work of the Criminal Courts the cases generally vary between these extremes. The duty of the Judge in each case can only be determined when the evidence is closed, and the issues upon which the verdict must really turn have taken definite shape. The principle on which the Judge ought, in my opinion, to deal with evidence of this kind in his direction to the jury may be stated in a few words. If a statement admitted because it was made in the presence of the accused, and not being in itself evidence against him, is of such a nature, and has been brought to his attention under such circumstances, that there may be danger of a juryman of ordinary intelligence mistaking the effect of the evidence, and giving weight to the statement as being in itself evidence against the accused, the Judge will be bound to specifically instruct the jury as claimed in this ease. Where there is no danger of jurymen being so misled no specific warning need be given. Tried by that test the direction of the learned Judge in this case was, in my opinion, substantially correct. It was clear on the prisoner’s admission that the boy had been in the cart on the occasion in question, and that the prisoner had played with him, though, as the prisoner alleged, quite innocently. The vital issue as put to the jury by the learned Judge was whether they believed the boy’s account of what the accused had done, and he further told them that unless they believed the boy’s account the accused must be acquitted. Having regard to the emphatic and detailed denial given by the accused to the several portions of the

(1) (1910) 2 KB, 496.  

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boy’s story discussed in the conversation with the constable, it is difficult to see how the jury could have been misled into giving any effect as against the accused to the statements alleged to have been made by the boy to his mother and to the constable, which, at the most could amount to no more than what he said in the witness-box. If the differences between the story of the accused and that of the boy were merely differences in detail, it is possible that the jury might, if not warned against such a course, have been misled into improperly giving to the boy’s statements to his mother and to the constable a corroborative effect in aid of his evidence at the trial. But the issues did not turn on the details but on the substance of the boy’s account of the occurrences at the dray as given in Court. If that account was untrue the same story told to his mother and to the constable must have been untrue also. The importance of keeping in mind the way in which the real issues at the trial were shaped by the evidence is specially adverted to by Lord Alverstone in the passage I quoted at the beginning of this judgment. Looking at what the real issues were, and the learned Judge’s direction in regard to them, I can see no reason, therefore, for coming to the conclusion that the jury were likely to be misled into treating the boys statements as furnishing in themselves corroboration of his evidence in Court.

    For these reasons I am of opinion that the accused was not entitled to have the special direction to the jury which he claimed, and that the omission to give it did not entitle him to have the conviction reversed. I therefore agree that the judgment of the Supreme Court must be set aside, this appeal allowed, and the conviction restored.

    ISAACS J.  I think this appeal should he dismissed. The learned Judges of the Supreme Court have, in my opinion, correctly stated and applied the law of the case. If I were not differing from the views entertained by my learned brethren I should be content to simply state my agreement with the reasons given in the judgments appealed from, with the additional observation that since they were delivered there has been the

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confirmatory decision of the Court of Criminal Appeal in R. v. Norton (1).

    In the circumstances, however, it is proper for me to state in my own words why I have arrived at the same conclusion. It is an elementary rule of law, going to the very foundation of justice, that no man shall be adjudged to be guilty of a crime upon evidence of another person’s previous assertion. It matters not whether the assertion was made in the absence or the presence of the accused, as a mere assertion it cannot be regarded as any proof of the culpability of the accused or any confirmation of his accusers. But it is evident that upon such an assertion being made, and equally whether in the accused’s absence or presence, he may admit its truth, and if he does, then it becomes evidence against him of his guilt, not because another has said it, but because of the admission. It is then equivalent to his own statement, and is receivable in that character. And it is further manifest that the acknowledgment of its correctness may be made in an infinite variety of ways. There may be an express and unqualified admission, or there may be a guarded admission, or there may be no direct but merely an implied acknowledgment, or there may he conduct, active or passive, positive or negative, from which, having regard to the ordinary workings of human nature, a total denial may be considered by reasonable men to be precluded, because, if innocence existed, an unequivocal or a qualified denial would in such a situation be expected. Even an express denial may be accompanied by circumstances such as “evasive responsion”: Best on Evidence, par. 575, or hesitation or subsequent challenge without reply as in R. v. Thompson (2), which leave it open to a jury to say whether an admission of any kind ought or ought not to be inferred, Thompson’s Case (2) it is said overrules Smith’s Case (3). In Thompson’s Case (2) the objection was to the statement being admitted at the preliminary stage for the purpose of drawing an inference of admission of its truth. Prisoner’s counsel urged, on the strength of Smith’s Case (3), that unless there was active admission—which was impossible, he contended, where there was active denial—the statement

(1) (1910) 2 KB, 496. (2) (1910) 1 KB, 640. (3) 18 Cox C.C., 470.

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should be entirely kept out of evidence for any purpose. Lord Alverstone CJ disagreed with that, and said if Smith’s Case (1) is supposed to have enunciated such a doctrine it went too far. He refused to lay down any general rule as to admissibility, that is for the purpose of the preliminary question. He approved of the Judge when admitting the statement expressly warning—that is directing—the jury against accepting the statement as true in any way, and the repetition of that warning in summing up. He considered that the statement was in the circumstances admissible, and that its weight—which obviously means its weight as evidence of the suggested admission of its truth—was for the jury. 1 “The point taken on behalf of the prisoner fails, said the Lord Chief Justice, and that point was entirely confined to what I have called the preliminary stage. I must say that after a careful perusal of Smith’s Case (1), particularly at p. 472, I would hesitate to believe that Hawkins J. intended to lay down any rule on this point other than that enunciated in Thompson’s Case (2). But whether as to that Thompson’s Case (2) does or does not correct Smith’s Case (1) is immaterial to our present inquiry; because the admissibility of the statement in the case before us is not contested, so far as it relates to the preliminary stage, and the difficulty here begins just where that in Thompson’s Case (2) ended. But that case is most valuable for the approval given by the Court to the express direction of the presiding Judge, cautioning the jury not to regard the statement as evidence on the main issue. As to that it accords with Smith’s Case (1) on the same point.

    Conceding then the statement here to have been originally properly received in evidence for the purpose mentioned, what is the effect of it? As long ago as 1829 Parke J. in Helen v. Andrews (3), a civil case—for the rule is universal—said of a conversation in a person’s presence, “it is only for the sake of these inferences that the conversation can ever be admitted.” So in 1882 in R. v. Smithies (4), a criminal case, the same learned Judge and Gaselee J. held observations stated to have been made to the prisoner by his wife to be receivable as evidence of an

(1) 18 Cox C.C., 470.
(4) 5 C. & P., 332.
(2) (1910) 1 KB, 640. (3) M. & M., 336, at p. 337..

[1 no closing quotation marks found in the above original text.]

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implied admission on his part. When the Judge has permitted a statement to be given in evidence in what I call the preliminary stage, or what may be considered a collateral inquiry of “acceptance or non-acceptance” of the accuracy of the statement, then the function of the jury is to find upon that preliminary or collateral issue. And according as they find upon it, so must be the future fate of the statement as to its being regarded as evidence or no evidence on the main issue. If the jury find acceptance, whether express or inferred, a statement to the extent of the acceptance, but no further, is then for the first time properly considered as introduced among the evidence of the truth of the facts stated in it—that is, of guilt. Even an admission—other than a formal plea—is not conclusive; it is evidence only and may be outweighed by other evidence; Heane v. Rogers (1).

    If, however, the jury either find there was no acceptance, or only a limited acceptance, then the statement must be either wholly, or so far as it is in excess of the acceptance, disregarded from consideration, and practically erased from the testimony, as matter which has proved on examination to be a mere intrusion into the case.

    The next question, and really the only material one for the decision of this case, is what is the proper course for the Judge to pursue? I entirely agree that no Judge is called upon to state to the jury any law not required for their instruction having regard to the circumstances of the case.

    But Lord Blackburn was careful to say in the case relied on by the appellant (Prudential Assurance Co. v. Edmonds (2) ):— “When once it is established that a direction was not proper, either wrong in giving a wrong guide, or imperfect in not giving the right guide to the jury, when the facts were such as to make it the duty of the Judge to give a guide, we cannot inquire whether or no the verdict is right or wrong as having been against the weight of evidence or not, but there having been an improper direction there must be a venire de novo.”

    To some extent that is qualified by the StatuteCrimes Act 1900, sec. 470—which, provides against the reversal of a convic–

(1) 9 B. & C., 577, at p. 586. (2) 2 App. Cas., 487, at p. 507.  

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tion unless for some substantial wrong or other miscarriage of justice. But Norton’s Case (1), following R. v. Stoddart (2), establishes that a substantial miscarriage has occurred if a wrong direction has been given, unless the Court is satisfied that the jury would—not might—have found the prisoner guilty. See also Makin v. Attorney-General for New South Wales (3) herein-after referred to. No such position is possible in the present case. If the necessary warning was absent the statement is too serious to be ignored.

    The first question then is whether the facts were such as to make it the duty of the Judge to give the jury the distinct warning that they were to disregard the statement except so far as they found it to be admitted. With the greatest deference to the opposite view taken by my learned brethren, I cannot help feeling that the facts distinctly called for such a warning. I apprehend that, whenever there is a possible excess of a statement containing assertions of a damaging nature and made in the presence of an accused person over the part accepted by him as true, the whole statement being admitted originally because separation is impossible, it is always a necessary instruction to the jury, untrained as they are in the practice of the law, how they should regard the part unaccepted in case they find it to exist. There the circumstances of the case are such as to require the guiding direction. The damaging nature of the statement may be in the nature of an accusation direct or indirect, or it may be by reason of assertions of extraneous facts, such as conversations with some persons calculated to influence the mind of the jury, by lending apparent corroboration or credibility to the story told for the prosecution. In every such case there is obviously a possibility of unlawful prejudice to the accused, should the jury take into their consideration the unaccepted part of the statement. When I say “unaccepted part” I include in the case of a statement, extraneous statements which a prisoner cannot accept or deny, such as an alleged conversation between third persons, and which could not under any circumstances be in itself legal evidence against him on the main issue, but which

(1) (1910) 2 KB, 496. (2) 25 TLR, 612, at p. 617 . (3) (1894) A.C., 57 

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must be admitted in the first instance as part of the statement so as to make the whole intelligible. Though no part of a direct accusation, it is almost equally dangerous, and more insidious, because it might go far in the minds of the jury and induce them to give credit to the accusing witness, and thus really determine the case in favour of the prosecution.

    The jury should be made clearly to understand that they are not to consider this part at all, that they are not to weigh it, but to blot it out of their mental vision. Even such an intimation leaves a prisoner heavily handicapped by a prejudicial statement being brought at all to the notice of the jury, and the recorded authorities seem to me without variation to declare that a prisoner is in all such cases entitled to an explicit instruction on the point. Any other rule leaves it entirely to the discretion of the presiding Judge whether the prisoner shall be prejudiced or not, and makes him the tribunal to determine the weight of the unaccepted part, instead of the jury. There is nothing impracticable in following the rule. Where the statement is clearly separable, there the Judge can point out the line of demarcation. Where it is not, the Judge can at least indicate to the jury the mental process necessary to effect the same result. The jury are supposed to do it, and there is no difficulty that I can see in explaining to them their duty. Certainly the difficulty of attempting it is no reason for permitting a man to be convicted upon improper testimony.

    In Smith’s Case (1), decided in 1897, Hawkins J. is express as to this. After that had stood unchallenged for nine years, the tenth edition of Taylor on Evidence appeared (February 1906). Paragraphs 816 and 907 are material. Paragraph 816 contains this passage:— “In all these cases must be distinctly remembered that the statement made in the party’s presence or hearing is not evidence against him, but his own conduct in consequence of such statement is the sole evidence.” Paragraph 907 states (inter alia) that whether there is any evidence that the prisoner admitted the truth of the statement is for the Judge, and the paragraph proceeds:— “If he thinks so he should allow the evidence to go to the jury, and if they come to

(1) 18 Cox C.C., 470, at p. 471.    

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the conclusion that the prisoner admitted the truth of the whole or any part of it, they may take the statement into consideration, or so much of it as they think admitted, as evidence, not because the statement standing alone is any evidence, but solely because of the prisoner’s admission of the truth. Unless the jury find as a fact that there was such admission, the statement is not evidence.”

    I have quoted this passage because it is professedly founded on Smith’s Case (1), and because it is expressly approved by the Court of Criminal Appeal in Bromhead’s Case (2) in December 1906.Lord Alverstone CJ there pointed out that the statement made by another person in the prisoner’s presence was not admissible to prove the facts contained in it but only as dealing with the conduct and demeanour of the prisoner, that is the preliminary or collateral inquiry. Then he went on to say that the Judge had directed the jury in accordance with paragraphs 816 and 907of Taylor on Evidence, and added: “It cannot be said that these statements were used for a wrong purpose.” In other words it is clear the opinion of the learned Lord Chief Justice was that, if the statement as a statement had been treated as evidence upon which to determine guilt, it would have been used for a wrong purpose, and further that the explicit direction in accordance with paragraph 907 of Taylor was the proper course to prevent the wrong use of the statement. Bromhead’s Case (2) is the decision not only of the Lord Chief Justice, but also of Lord Mersey (then Bigham. J.), and Grantham., Lawrence and Bucknill JJ.

    Lastly, in R. v. Norton (3), the Court of Criminal Appeal, consisting of Lord Alverstone CJ, and Pickford and Lord Coleridge JJ. in a written judgment read by Pickford J., in terms which show it is the joint considered opinion of all three Judges, laid down the rule most distinctly and in accordance with the previously declared practice. After detailing the various steps which under the present practice in England led up to the admission of such statements for the purpose of ascertaining whether or not there was any acknowledgment of their truth, the judgment proceeds thus:— “Where they are admitted we

(1) 18 Cox C.C., 470.  (2) 71 J.P., 103. (3) (1910) 2 KB, 496, at p. 500.

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think the following is the proper direction to be given to the jury,” and then follows a verbatim extract from the judgment of Hawkins J. in Smith’s Case (1). That passage, as I have said, is condensed in Taylor from Smith’s Case (1), approved in Bromhead’s Case (2), unnoticed in, because irrelevant to Thompson’s Case (3), and expressly adopted by time Court of Criminal Appeal in Norton’s Case (4). Norton’s Case (4), in my opinion, goes no further than I have stated.

    I find, therefore, what appears to me a clear, definite and authoritative pronouncement of the law, which I feel bound to follow.

    The learned Chairman states in the special case that he impliedly gave the requisite instruction. But whether he did so or not must be determined by looking at the direction itself, which he states he gave.

    The view taken by the learned Judges of the Supreme Court as to this appeals to me as perfectly sound. It seems to me impossible to say the jury were told in substance to discard the surplus statements, as not being any evidence whatever against the prisoner on the issue of innocence or of guilt. They were reminded in effect that two persons only—the prisoner and the boy—could speak directly as to the occurrences on 2nd March, and that both these persons had given their respective accounts. Reference was made to the boy’s evidence in Court, and to the prisoner’s statement in Court, and his statement to the constable, denying the assault, and therefore, said the learned Chairman, their verdict depended on “whether they believed the boy or not,” and he adds, “I told them that unless they were satisfied as to the truth of the boy’s evidence they ought to acquit the accused” (5). Is that enough? I have looked in vain for any indication that would convey to the lay minds of the jury that the surplus statement was not evidence on the issue of guilt. The last sentence quoted is nothing more than the common exhortation to give the accused the benefit of any doubt. They were advised to be “satisfied” that the boy’s evidence was true before they found the man guilty. But nowhere were they told

(1) 18 Cox C.C., 470.
(4) (1910) 2 KB, 496. 
(2) 71 J.P., 103.
(5) 10 S.R. (N.S.W.), 309, at p. 311.
(3) (1910) 1 KB, 640.

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that that satisfaction must be obtained independently of the statements of the constable and the boy on 4th March, that the boy had at an early period told the same story as he gave in the witness-box.

    The statement of the prisoner in Court is put by the learned Chairman on the same footing as his denial out of Court, that is, they were treated equally as elements to be weighed in determining guilt or innocence. And if the denial was a factor, so was the statement denied. Altogether there is an absence of the affirmative specific guidance which the authorities cited require. The jury probably considered they had to judge between the veracity of the boy and that of the man from all the matters deposed to. And when it came to a contest of veracity between the unsworn statement of the accused and the sworn testimony of the boy, it is impossible, I think, to escape feeling the enormous weight that in the absence of the most careful warning might, and probably would be attached by the jurymen to the circumstance, involved in the constable’s statement and the boy’s assent, that soon after the event the boy had recounted the story in all its main details, first to his mother and then to the constable. This, in my opinion, should have been distinctly withdrawn, and the jury warned against considering it.

    If they were hesitating whether they should believe the story of the boy as given in the witness-box, the circumstance of a consistent story being told by him a month before would in all human probability have great importance and seriously affect their verdict. This is the real point of the judgments of the learned Judges of the Supreme Court (see fols. 44 and 77), and is the real point of the case. Lord Blackburn’s words therefore apply with cogent force, and so does the ease of R. v. Gibson (1). In that case everything turned on the identification of the prisoner with the person who threw the stone. There was ample evidence of his identification other than the statement contested. That statement was made by the prosecutor in the course of his evidence, and was un-objected to until after the jury had retired. Lord Coleridge CJ said the verdict of guilty could not stand “by reason of the illegal evidence having been left to

(1) 18 Q.B.D., 537. vol. xi.30.  

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the jury.” The Chairman in that case expressly drew the attention of the jury to the objectionable evidence, but that was immaterial in principle. The point was that the evidence was allowed to be given, and not affirmatively withdrawn. The learned Lord Chief Justice said (1):— “I am of opinion that the true principle which governs the present case is that it is a duty of the Judge in criminal trials to take care that the verdict of the jury is not founded upon any evidence except that which the law allows. Here evidence which was at law inadmissible was allowed to go to the jury.” Stephen J. agreed. Mathew J. said it was the duty of the Judge to warn the jury not to act upon evidence which is not legal evidence against the prisoner. Wills J. also said there was an affirmative duty on the Judge to take care that the prisoner is not convicted upon any but legal evidence.

    As the evidence complained of in this case was inadmissible on the question of guilt or innocence, and in itself inadmissible at any stage and for any purpose because res inter alios acta, the observations in Gibson’s Case (2) exactly apply, and with even greater force than in that case. Though Gibson’s Case (2) in 1887 appears to be the first reported case directly on the point, the doctrine it enunciates has been long recognized in English law. For instance, in Milne v. Leisler (3), twenty-five years earlier, Channell B. says:— “I do not mean to say that if a document is admissible for a certain purpose, so that the Judge could not exclude it, it becomes evidence of all the facts alleged in it. Where the document cannot be altogether excluded, it seems to me a safer and better rule for the Judge to caution the jury against acting upon that part of it which is not evidence.”

    And still earlier, 1832, in Willis v. Bernard (4), Park J. said:— “So in the case of prisoners; where confessions are given in evidence which unavoidably involve the mention of others besides the party confessing. But the jury are always cautioned to exclude the statement as against any but the party confessing. They also received a proper caution in this case, and, subject to that, the letter was properly admitted.”

    Evidently those learned Judges made no exception, and thought

(1) 18 Q.B.D., 537, at p. 542.
(4) 8 Bing., 376, at p. 384.
(2) 18 Q.B.D., 537. (3) 7 H. & N., 786, at p. 600.

~ ~ ~ ~ ~

p. 431

H. C. of A. 1910. The King v. Grills. Isaacs J

it insufficient merely to ask the jury if they believed the opposite testimony.

    The same affirmative duty of the Judge to take care was insisted on in R. v. Bridgwater (1), and again by the Court of Criminal Appeal by three Judges as recently as R. v. Fisher (2). There the rule is made plain that, where evidence is allowed to go to the jury against the prisoner which ought to have been excluded, if the jury may have been influenced by it the conviction cannot stand, although there is sufficient evidence otherwise to convict the prisoner. And Fisher’s Case (2) was still more recently followed by the same Court consisting of five Judges: R. v. Ellis (3). And the last, but the most authoritative case I shall mention, is Makin v. Attorney-General for New South Wales (4). There the Privy Council, considering sec. 423 of time Crimes Act, said that where inadmissible evidence is introduced, then notwithstanding there is sufficient evidence to sustain the verdict and show the accused was guilty, there is a substantial wrong or miscarriage of justice except where it is impossible to suppose the evidence improperly admitted could have any influence on the verdict, as, for example, where it related to some merely formal matter not bearing directly on the guilt or innocence of the accused. To sustain a verdict under these circumstances would, as their Lordships say, amount to trial by Judges and not by jury.

    And in R. v. Bertrand (5) the Privy Council observed:— “The object of a trial is the administration of justice in a course as free from doubt or chance of miscarriage as merely human administration of it can be—not the interests of either party.”

    And that is why the consent of a prisoner to an illegal course counts for nothing.

    In my opinion, the object so indicated was not attained by the trial at which the prisoner was convicted. On the contrary, I feel little doubt that the statements referred to were very likely to influence the verdict; and therefore, in my opinion, the

(1) (1905) 1 KB, 131, at p. 158.
(4) (1894) A.C., 57. 
(2) (1910) 1 KB, 149.
(5) L.R. 1 P.C., 520, at p. 534.
(3) 26 TLR, 535.

~ ~ ~ ~ ~

p. 432

H. C. of A. 1910. The King v. Grills.

decision arrived at by the Supreme Court was correct and should be upheld.

Appeal allowed.

    Solicitor, for appellant, JV Tillett, Crown Solicitor.
    Solicitor, for respondent, LJ Hardiman, Kempsey, by JW Maund.

~ ~ ~ ~ ~

The Daily Telegraph, Thu 1 Dec 1910 30

LAW
Wednesday, November 30.
HIGH COURT OF AUSTRALIA.
(Before Sir Samuel Griffiths, CJ, Justice Sir E Barton, and Justices O’Connor and Isaacs.)

CONVICTION OF HENRY GRILLS.
RESTORED ON APPEAL BY THE CROWN.

    Judgment was delivered in the matter of the King v. Grills, in which Mr Blacket (instructed by Mr JV Tillett, Crown Solicitor) appeared for the Crown, and Mr James Young (instructed by Mr JW Maund) for the respondent, Henry Grills.

    This was an appeal by special leave of the High Court from an order and judgment of the NSW Supreme Court of May 24, whereby the conviction of the respondent Grills at the Kempsey Quarter Sessions, by Judge Docker and jury, on April 5, for an unnatural offence on a boy, and a sentence of five years’ penal servitude were reversed. At the trial the arresting constable was called as a witness for the prosecution, and deposed to a conversation between himself, the accused, and the boy, at the time of the arrest. No objection was made to the admission of the conversation, or to the judge’s direction, but after the verdict the accused’s advocate asked that the following points might be reserved for the consideration of the Supreme Court:—That his Honor should have directed the jury that the statements made by the prosecuting constable, Constable Grove, in the presence of the accused, tending to implicate him in the crime, and denied by him, were not evidence against him of guilt, and that his Honor allowed statements made in the presence of the accused, and denied by him as false, to go to the jury as evidence against the accused. When the matter was before the Full Court the Chief Justice remarked that though the learned judge was careful to point out to the jury that in view of the prisoner’s denial of guilt their verdict depended upon the question whether they believed the boy or not, they did not appear to have been sufficiently warned against the danger of treating the boy’s evidence in the box as being supplemental or confirmed by what was said by the constable or by himself on the occasion. Similar views were taken by Justice Cohen and Gordon, and the conviction was squashed.

    The Crown now appealed from the whole of the judgment of the Full Court on the ground that the jury was sufficiently and properly directed by his Honor; that the evidence as to the conversation with the prisoner was admissible, and no direction in respect of it was required; that a direction as to the weight or effect of evidence was required only when some rule of the law had to be applied in the consideration of such evidence; that a prisoner could not complain that a direction which the judge was not required by law to give was not given if no such direction was asked for before verdict; that as the evidence in question was admitted without objection, and the judge was not asked to withdraw it from the jury, it was too late to take exception to it after verdict; and that under the judgment of the Supreme Court a conviction founded upon admissible evidence had been quashed because his Honor did not give a direction which the law did not require him to give, and which he was not asked to give by counsel for the prisoner.

    The Chief Justice, in the course of his judgment, said that the Supreme Court were of opinion that the evidence was properly admitted, and there could be no doubt as to the correctness of that opinion, but they thought that the direction was defective, in that it did not warn the jury against giving any independent weight to the statements made by the constable and the boy in the presence of the accused as corroborative of the boy’s sworn testimony. It was common knowledge to all who were conversant with the administration of criminal law, that in a very large proportion of cases evidence of conversations with the accused was given, and necessarily given. It was equally common knowledge that it had never been the practice of judges to caution the jury not to attach independent weight to a statement made by one party to such a conversation, and denied by the accused, unless the circumstances of the case were such as to call for such a caution. In his opinion, the true rule, which was the rule of common-sense, as well as of law, was that when evidence had been given of an unsworn statement made in the presence of the accused, whether in the course of conversation or not, then, if the circumstances of the case were such as to suggest a danger that the jury might think that the statement should be treated as independent evidence of the facts alleged in it, the judge should caution the jury against giving it any such effect. If, on the other hand, the circumstances of the case did not suggest any such danger, he need not do so. The test in each case was the necessity, which could only be ascertained by considering the circumstances of the particular case. The learned judges of the Supreme Court referred to the case of Rex v. Gibson, a case that had been much misunderstood, owing to the erroneous, or at least ambiguous, wording of the head note, and which really decided that if a jury were expressly invited to take inadmissable [sic] evidence into consideration the conviction was bad. There was no case which decided that a conviction was necessarily bad on the ground that the jury had not been expressly directed to disregard such evidence. Rex. v. Gibson, had no application to the present case, in which the evidence was properly admitted. Several other cases were also referred to by the learned judges, which were all upon the admissibility of evidence and not upon misdirection or non-direction, and before the High Court reference was made to the case of Rex v. Norton, reported since leave of appeal was given. The only point actually decided in that case was that statements made in the presence of the accused, and denied by him, could not be treated as substantial evidence of the facts so denied. “Ever since I have had the honor to occupy this seat,” continued the Chief Justice, “I have tried—I do not know with what success—to dispel the notion that the law—I am not speaking of statute law—is not a mysterious esoteric science, which can be understood by initiates and to show that it is a system founded on broad principles of commonsense, applicable to the everyday conditions of civilised life. Applying such principles to the present case, there can, in my judgment, be no doubt as to the result.” “The learned chairman expressly directed the jury that they had to decide between the boy’s sworn evidence and the defendant’s denial, made both in the dock, and when he was accused by the constable and the boy,” continued his Honor. If, therefore, the occasion was one which called for any explicit direction on the subject, and he thought it was not, he thought that such a direction was given in terms sufficient to prevent an error being committed by any reasonable men. He was of opinion that the appeal should be allowed, and the conviction restored.

    Judgments confirming the Chief Justice’s view were delivered by Sir Edmund Barton and Mr Justice O’Connor.

    Mr Justice Isaacs thought the appeal should be dismissed. The learned judges of the Supreme Court had, in his opinion, correctly stated and applied the law of the case, if he were not differing from the views entertained by his brethren he would be content to simply state his argument with the reasons given in the judgment appealed from, with the additional observation that since they were delivered there had been the confirmatory decision of the Court of Criminal Appeal in Rex v. Norton (1910, 2 KB, 496). After stating the reasons for his disagreement, his Honor said that the Privy Council had observed that the object of a trial was the administration of justice in a course as free from doubt or chance of miscarriage as merely human administration of it could be—not in the interest of either party. That was why the consent of a prisoner to an illegal course counted for nothing. In his Honor’s opinion, the object so indicated was not attained by the trial, at which the prisoner was convicted. On the contrary, he felt little doubt that the statements to were very likely to influence the verdict; and therefore in his opinion the decision arrived at by the Supreme Court was correct, and should be upheld.

    An order was made allowing the appeal, and restoring the conviction.

~ ~ ~ ~ ~

The Sydney Morning Herald, Thu 1 Dec 1910 31

LAW REPORT
———◦———
THE HIGH COURT
(Before the Chief Justice and Justices Barton, O’Connor, and Isaacs.)

THE KING V HENRY GRILLS.
APPEAL ALLOWED AND CONVICTION RESTORED.
Mr JUSTICE ISAACS DISSENTS.

    The Court delivered its reserved judgment in the appeal by special leave from a decision of the New South Wales Supreme Court, quashing the conviction of Henry Grills upon indictment for an aggravated assault on a boy, on the ground of non-direction. The Supreme Court held that the direction of the Judge to the jury at the time was defective, in that it did not warn the jury against giving any independent weight to the statements made by the constable and by the boy in the presence of the accused as corroborative of the boy’s sworn testimony.

    The Chief Justice—Justice Barton and O’Connor agreeing, and Mr Justice Isaacs dissenting—allowed the appeal. “In my opinion,” he said, “the true rule, which is a rule of common sense, as well as of law, is this: When evidence has been given of an unsworn statement made in the presence of the accused, whether in the course of conversation or not, then, if the circumstances of the case are such as to suggest a danger that the jury may think that the statement should be treated as independent evidence of the facts alleged in it, the Judge should caution the jury against giving it any such effect. If, on the other hand, the circumstances of the case do not suggest any such danger, he need not do so.” After giving further reasons, his Honor said: “I do not think that anyone would be more surprised—perhaps not without amusement— than the learned Judges who were parties to the decision in Rex v Norton to hear that they had laid down a general rule applicable to all cases in which any evidence is given of a conversation with an accused person in which an assertion is made in his presence, and denied by him; so that if, for instance, at the trial of a man charged with stealing from the person, evidence were given that the accuser gave the accused into custody, saying to the constable: ‘This man has picked my pocket’—and that the accused then denied the charge, the presiding Judge would be bound expressly to direct the jury that they must not attribute any independent weight to the statement so made, and that in the absence of such a direction there would be a mistrial, and the conviction should be quashed. Ever since I have had the honour to occupy this seat I have tried—I do not known with what success—to dispel the notion that the law—I am not speaking of statute law—is not a mysterious esoteric science, which can only be understood by initiates, and to show that it is a system founded on broad principles of common sense applicable to the everyday conditions of civilised life. Applying such principles to the present case, there can, in my judgment, be no doubt as to the result.”

    Mr Justice Isaacs thought that the appeal should be dismissed. The Supreme Court Judges had correctly stated and applied the law of the case. Since the Supreme Court had delivered its judgment there was the confirmatory decision of the Court of Criminal Appeal in Rex v Norton.

    Appeal allowed, conviction restored.

 


1     SRNSW: NRS13362, [7/3798], Registers of inmates, pp. 93-4, R1876. Emphasis added.

2     The Macleay Chronicle (Kempsey), Wed 9 Mar 1910, p. 8.

3     The Macleay Argus (Kempsey), Fri 11 Mar 1910, p. 12.

4     The Macleay Chronicle (Kempsey), Wed 16 Mar 1910, p. 5.

5     The Macleay Argus (Kempsey), Fri 18 Mar 1910, p. 4.

6     The Macleay Chronicle (Kempsey), Wed 6 Apr 1910, p. 5. Emphasis added.

7     Judge Ernest Brougham Docker (1842-1923), judge and photographer, was born on 1 Apr 1842 at Thornwaite, near Scone, NSW. Educated at the Collegiate School, Cook’s River and St Paul’s College, Sydney University, where he lived up to his early promise, winning the University Medal for English verse in 1861 and the Wentworth medal for an English essay in 1862. He graduated BA in 1863 and MA in 1865, then turned his attention to the law. Admitted to the colonial Bar on 28 Jun 1867, Docker advanced steadily in his profession, becoming crown prosecutor for the northern district in 1875, the south western district in 1878, and judge of the District Court and chairman of Quarter Sessions for the north-western district in 1881. During 1884-1912 he was in the western district. He was conscientious on the bench, working long hours, arranging his sittings conveniently for suitors, and taking additional courts, often without remuneration. His legal knowledge was sound but his forthright manner, cutting wit and severe sentences upon hardened criminals drew criticism. He was concerned, however, that justice should always be done. He opposed shorthand writers in the court but urged the adoption of English criminal law reforms, changes in the perjury law, and an end to restrictions upon the competency of witnesses to give evidence; he also wanted public prosecutors instead of the police for Crown cases in the lower courts. In 1912 he transferred to the metropolitan District Court. He retired in 1918 after the passage of the Judges Retirement Act. The judge died at his Sydney harbour waterfront home, ‘Mostyn’, Elizabeth Bay, on 12 Aug 1923. ADB, 1891-1939, vol. 8, pp. 312-3.

8     Kempsey Quarter Sessions documents could not be located at SRNSW.

9     The Macleay Argus (Kempsey), Fri 8 Apr 1910, p. 16.

10   The Macleay Argus (Kempsey), Fri 8 Apr 1910, p. 8.

11   The Macleay Chronicle (Kempsey), Wed 13 Apr 1910, p. 2.

12   The Macleay Argus (Kempsey), Fri 15 Apr 1910, p. 16.

13   The Richmond River Herald and Northern District Advertiser, (NSW), Fri 15 Apr 1910, p. 8.

14   SRNSW: NRS2138, [3/6075], Darlinghurst Gaol photographic description book, 1910-1911, No. 11300, p. 13, R5114.

15    The Sydney Morning Herald, Sat 7 May 1910, p. 8. Emphasis added.

16   The State Reports, New South Wales, 1910, vol. 10, pp. 309-24.

17   Justice WP Cullen’s notes can be found at: SRNSW: NRS5806, [7/9246] , Banco, vol 2, 8 Mar-24 May 1910, pp. 103-7, 169. Justice A Gordon’s notes can be found at: SRNSW: NRS5981, [7/9371] , Banco, vol 1, May 1910–27 May 1912, pp. 29, 39. Justice A Cohen’s notes can be found at: SRNSW: NRS5780, [2/2566] , Banco, no. 19, 6–27 May, 16 Dec 1910, pp. 1-2.

18   res gestae. ‘The facts surrounding or accompanying a transaction which is the subject of legal proceedings; or, all facts so connected with a fact in issue as to introduce it, explain its nature, or form in connection with it one continuous transaction. Evidence or words used by a person may be admissible on the ground that they form part of the re gestae, which might otherwise be inadmissible as hearsay.’PG Osborn, A Concise Law Dictionary, fifth edition, Sweet & Maxwell, London 1965, p. 278 .

19   Evening News, (Sydney, NSW), Tue 24 May 1910, p. 5.

20   The Advertiser, Wed 25 May 1910, p. 6.

21   The Daily Telegraph, Wed 25 May 1910, p. 14.

22   The Sydney Morning Herald, Wed 25 May 1910, p. 7.

23   NAA: A10071, 1910/18, High Court of Australia.

24   The Sydney Morning Herald, Tue 21 Jun 1910, p. 4.

25   The Sydney Morning Herald, Mon 27 Jun 1910, p. 3.

26   The Sydney Morning Herald, Wed 16 Nov 1910, p. 6.

27   The Sydney Morning Herald, Fri 18 Nov 1910, p. 5.

28   Commonwealth Law Reports, 1910, vol. 11, pp. 400-32.

29   aliunde. ‘From another place or person.’ PG Osborn, op cit, p. 23.

30   The Daily Telegraph, Thu 1 Dec 1910, p. 4.

31   The Sydney Morning Herald, Thu 1 Dec 1910, p. 6.