R v Toohey
| Jurisdiction | UK Non-devolved |
| Judge | Lord Reid,Lord Morris of Borth-y-Gest,Lord Hodson,Lord Pearce,Lord Donovan |
| Judgment Date | 01 February 1965 |
| Judgment citation (vLex) | [1965] UKHL J0201-3 |
| Date | 01 February 1965 |
| Court | House of Lords |
[1965] UKHL J0201-3
Lord Reid
Lord Morris of Borth-y-Gest
Lord Hodson
Lord Pearce
Lord Donovan
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Toohey against Commissioner of Police of the Metropolis (on Appeal from the Court of Criminal Appeal), that the Committee had heard Counsel, as well on Monday the 14th as on Tuesday the 15th, days of December last, upon the Petition and Appeal of Brian Anthony Toohey, of 45 Langbrook Road, Kidbrooke, S.E.3, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Criminal Appeal, of the 21st of September 1964, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of the Commissioner of Police of the Metropolis, the Respondent in the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Criminal Appeal, of the 21st day of September 1964, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the conviction be quashed: And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Court of Criminal Appeal, to do therein as shall be just and consistent with this Judgment.
My Lords,
I have had an opportunity of reading the speech of my noble and learned friend, Lord Pearce, and for the reasons which he gives I am of opinion that this appeal should be allowed and the Appellant's conviction should be quashed.
My Lords,
I have had an opportunity of reading the speech of my noble and learned friend, Lord Pearce, and for the reasons which he gives I also am of opinion that this appeal should be allowed and the Appellant's conviction should be quashed.
My Lords,
I have had the opportunity of reading the Opinion which has been prepared by my noble and learned friend, Lord Pearce, with which I am in agreement. I am of opinion that the appeal should be allowed and the conviction quashed.
My Lords,
The Appellant and two other men were convicted on indictment of together assaulting Madden, a youth of 17, with intent to rob him. The episode took place in the dark in an alleyway beside and behind a cinema. The main evidence for the prosecution was that of Madden. There was also evidence from two police officers who saw two men standing in the shadows outside the cinema, and, being suspicious, turned their car. A faint crying noise directed them to the alleyway where they found Madden with his back to the wall and the three accused standing round him. The Appellant was holding his arm. Madden's face was tear-stained; he was in a very distressed and hysterical condition, and his clothes were dishevelled. The accused claimed that they had done nothing wrong to him and were going to take him home. The boy said that he was going to the police station. He attempted to run away from the police officers, but they caught him and took him to the police station where he was examined by the Divisional Police Surgeon. At the trial Madden gave evidence that he was dragged into the dark alleyway, that the Appellant hit him in the stomach and on the head until he "saw sparks"; and that one of the accused searched him but took nothing since he did not find the 10s. note which was in an inside pocket.
The defence was that Madden appeared to have been drinking and was behaving strangely, laughing and joking, and apparently incapable of taking care of himself. The three accused men were going to take him home, but one of them wanted to make water; so they went down the alleyway behind the cinema. While the Appellant was relieving himself, Madden bumped into him from behind, banged himself against a wall, and became hysterical, saying that someone had hit him and that they were after his money. They held his arm and took him up the alleyway to calm him down and get him home. They claimed that his account was an hysterical invention.
The Police Surgeon gave evidence for the defence to the effect that no bruises or signs of injury were found on Madden; that there was a definite smell of alcohol on his breath; that throughout the examination he was weeping and in a state of acute hysteria; that he was unable to reply sensibly to any question; and that at the end of the examination he just "flopped down" on the floor. The doctor was, however, prevented by a ruling of the learned Commissioner from giving certain further evidence. That exclusion is the ground of the present appeal.
There had been a previous abortive trial at which the jury disagreed. At that trial the doctor had given evidence inter alia that Madden's fall to the ground was a typically hysterical fall, a careful fall to avoid hitting himself on the furniture. He also said that "normal people do not have hysterical attacks like that" and that anyone who presented a hysteria like that would be prone to that sort of thing and would be unstable. Neither at that trial nor at the second trial did the prosecution object to any of the doctor's evidence. The learned Commissioner at the second trial, however, having presumably seen the notes of the doctor's evidence at the first trial, raised with counsel for the defence the question of admissibility before the doctor gave evidence. Relying on the case of ( The King v. Gunewardene [1951] 2 K.B. 600) he ruled that the doctor could say nothing "by way of medical opinion as to the boy's condition other than what he actually saw" and that he could not give a "a medical opinion" but … "such facts as anybody could have ascertained by looking at him".
The Court of Criminal Appeal fairly summarised under two heads the evidence of whose exclusion the Appellant was complaining. "The first was the doctor's opinion as to what part was played by alcohol in the hysterical condition of Madden … The second was the doctor's opinion from what he observed by his examination of Madden of what Madden's normal behaviour might be like; in other words, as Counsel put it, was he more prone to hysteria than a normal person, according to the doctor's observation". The Court of Criminal Appeal came to the conclusion that the evidence was properly excluded on the principle set out in Gunewardene's case.
On the same ground, they also rejected an application to tender additional evidence which was not available at the trial as to the mental condition of Madden as shown by matters which occurred after the alleged crime. Within two months of it Madden had pleaded guilty to loitering with intent. He was then certified as being subnormal, and an order was made under the Mental Health Act, 1959, for his detention in a hospital. The reports since his admission show him to be an hysterical, fanciful and untrustworthy person.
The Court of Criminal Appeal certified that a point of law of general public importance was involved, namely, "Whether, having regard to The King v. Gunewardene or otherwise, counsel for the defence ought to have been permitted to put to a medical witness called on behalf of the accused a question designed to obtain an expression of the witness's opinions on a matter relating to the general mental condition of the witness who had given evidence for the prosecution, namely whether he was normally of an unstable or hysterical disposition."
There are two separate and distinct aspects of this appeal, the first whether the medical evidence was admissible as relevant to the facts in issue at the trial, regardless of whether or not it affected the credibility of Madden as a witness, the second whether it was admissible as showing that Madden's evidence was unreliable.
The former question could have arisen even if Madden, through absence of memory, for example, had not given evidence at all. And even if the evidence was, by virtue, of Gunewardene's case, inadmissible for the purpose of discrediting Madden's evidence, it could not be excluded if it was relevant to the issues in the case. Its relevance can,...
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