Makin v Attorney General for New South Wales

JurisdictionUK Non-devolved
Judgment Date1894
CourtPrivy Council

Law of New South Wales - Criminal Law Amendment Act of 1883, s. 423 - Admissibility of Evidence - Evidence of Criminal Acts other than those Charged.

Evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment is not admissible unless upon the issue whether the acts charged against the accused were designed or accidental, or unless to rebut a defence otherwise open to him.

Where prisoners had been convicted of the wilful murder of an infant child which the evidence shewed they had received from its mother on certain representations as to their willingness to adopt it, and upon payment of a sum inadequate for its support for more than a very limited period, and whose body the evidence shewed had been found buried in the garden of a house occupied by them, held, that evidence that several other infants had been received by the prisoners from their mothers on like representations and on like terms, and that bodies of infants had been found buried in a similar manner in the gardens of several houses occupied by the prisoners, was relevant to the issue which had been tried by the jury.

Held, that sect. 423 of the Criminal Law Amendment Act of 1883 (46 Vict. No. 17) does not on its true construction empower the Court to affirm a conviction where the evidence submitted to the jury was inadmissible and may have influenced the verdict.

THIS was a petition by John and Sarah Makin for special leave to appeal from a judgment of the Supreme Court (March 30, 1893), whereby a verdict of guilty had been sustained on a special case stated, which verdict had been found on an indictment charging that they on the 29th of January, 1892, at Redfern, did murder (1.) Horace Amber Murray, (2.) a certain male infant whose name was unknown.

Four points had been reserved by the judge at the trial, as stated in the judgment of their Lordships, one of which was abandoned and the other three decided in favour of the Crown.

The special case contained the following statement: “On the 9th of November some constables found the remains of four infants in the back yard of 109, George Street, among which was the body of a male child, from two to nine weeks old. It was clothed with a long white baby's gown and underneath a baby's small white shirt, both of which were identified as being the gown and shirt in which Murray's baby had been dressed. A minute portion of the infant's hair resembled the hair of Murray's child. Previous to the finding of the four infants in George Street, Redfern (on the 9th of November), two bodies of infants had been discovered, one on the 11th and the other on the 12th of October, on the premises in Burren Street, McDonald-town, where the prisoners had, it appears, resided from the end of June until about the middle of August. During the adjournment of an inquest on one of those bodies held in October, the prisoner Sarah came to her former residence in George Street, Redfern, and said to witness, then residing there, that she had called to see about those people that had lived there before her, that she was a great friend of theirs, and asked if the police had dug the yard up, and further asked if any bodies had been found in the yard. At this inquest both prisoners were examined, no charge at that time having been made against them. They both swore that the only child that they had ever received to nurse was the one which they had in Burren Street, and which was given them after they arrived there. The prisoner Sarah swore that none but her own family had removed from George Street, to Burren Street. On the 2nd of November one, and on the 3rd four more bodies were discovered buried in Burren Street, and on the 3rd of November the prisoners were arrested. On the night of that day prisoner John was placed in a cell with a witness, who deposed that prisoner said to him that he (Makin) was there for baby-farming, that there were seven found and there was another to be found, and when that was found he would never see daylight any more; that is what a man gets for obliging people, and that he could do nothing outside as they were watching the ground too close; that there was no doctor could prove that he ever gave them anything, that he did not care for himself, but that his children were innocent. On the 12th of November the bodies of two infants, bones only, were found on the premises of Levy Street, Chippendale, where prisoners had resided some time previous to their residence in Kettle Street.” The prisoners had moved from Kettle Street to George Street, and thence to Burren Street.

Fullarton, Q.C., on the 1st of July, appeared in support of the petition, contending that, although the Court was unanimous in sustaining the conviction, yet considerable difference of opinion had been expressed by the judges on an important general question which the judges themselves had desired to have settled in McLeod, v. Attorney-General for New South WalesF1, but that case was disposed of on a point of jurisdiction. The question was whether, assuming evidence to have been improperly admitted, the conviction should be upheld if the Court considered the remaining evidence sufficient to sustain it. The evidence admitted in this case of other crimes was not relevant to the issue as to the crime charged. Evidence was admitted as to finding bodies of children elsewhere, which bodies were not shewn to have been bodies of children committed to the care of the prisoners.

Sir E. Clarke, Q.C., Poland, Q.C., Cluer, and R. H. Long Innes, for the Attorney-General, assented to the appeal being heard, and the appeal was fixed for the 17th, no printed cases to be lodged, on which day

Fullarton, Q.C., and Cunynghame, for the appellants, contended that evidence as to finding of bodies other than the body the subject of the issue to be tried, and the evidence of the five women to the effect that they had intrusted other children to the prisoners, which children had never been seen again, was inadmissible and vitiated the verdict. The general rule and practice of the Courts in criminal cases confined the evidence strictly to direct evidence of the commission of the particular act charged, and excluded evidence of similar acts committed, or supposed to have been committed, by the same prisoner on other occasions, not as being wholly irrelevant, but as inconvenient and dangerous. To admit this latter class of evidence was apt to take the prisoner by surprise, and raised issues as to other alleged acts, which were confused with the true issue, and which tended both to confuse and unduly to prejudice the jury. The rule in cases of forgery and of receiving stolen goods was an exception to the general rule for special reasons, and should not be extended: per Lord Campbell, C.J., in Reg. v. OddyF2; Reg. v. WinslowF3. The strictly limited extension of this exception by 34 & 35 Vict. c. 112, s. 19, only proved the rule; but for which the statute would not have been necessary. Even in forgery cases such evidence is only admitted after proof of the actual uttering of forged notes or base coin by the prisoner, and where the only issue left is as to the guilty intent, there being in these cases no presumption of guilty knowledge or intent; but in murder this presumption is made by law upon mere proof of the killing. In this case, moreover, there is no proof of the killing; the evidence objected to is introduced to induce the jury to believe the prisoners killed the child the subject of indictment, and not merely to prove a felonious killing. In Reg. v. GeeringF4 there was already strong evidence of the poisoning; the evidence was admitted to prove guilty intention. Otherwise it is opposed to Reg. v. OddyF5 and Reg. v. WinslowF6. Reg. v. GarnerF7 is for us as to the evidence excluded; where against us it is bad law, and disapproved by Stephen, J., who was counsel for the Crown. He also disapproves of Reg. v. GrayF8. Then there is no identification of any of the bodies except the one which is the subject of indictment. Even if the cases in George Street and Burren Street were admissible, the Levy Street evidence was wrongly admitted. There...

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