Sparks v The Queen

JurisdictionUK Non-devolved
Judgment Date1964
CourtPrivy Council

Crime - Evidence - Hearsay - Statement of child to mother shortly after indecent assault - Child not a witness - Identification - Inadmissible - Not part of the res gestae. - Crime - Evidence - Res gestae - Identification - Hearsay evidence - Inadmissible. - Crime - Evidence - Confession - Statements to police officers - Improper inducements - Inadmissible - No other evidence to support conviction. - Bermuda - Crime - Evidence - Hearsay - Identification - Res gestae - Admissibility.

At the trial of the appellant on a charge of indecently assaulting a girl just under the age of four the trial judge held to be inadmissible evidence by the child's mother of a statement made to her by the child-shortly after she had been assaulted, the child not being a witness at the trial, that “it was a coloured boy.” The appellant was a white man aged 27. The judge admitted certain statements (involving admissions or confessions) made by the appellant to police officers or made in their hearing. The appellant, who was found guilty, appealed against his conviction on the grounds, inter alia, (1) that the evidence of the child's statement should have been held to be admissible either as evidence of identity or because the words of the child formed part of the res gestae, and (2) the statements to the police officers were not admissible because they had not been voluntarily made. It was conceded by the prosecution that unless the statements were admitted there was no evidence on which the appellant could have been convicted:—

Held, (1) that the mother's evidence of what her child had said to her would have been hearsay evidence, and the child having neither given evidence nor said anything in the presence of the appellant, there was no basis on which her statement to her mother could be admitted. Further, even if any basis for its admission could be found, the evidence of the making of the remark would not be any evidence of the truth of the remark. There was no rule which permitted the giving of hearsay evidence merely because it related to identity; nor was it possible to say that the words alleged to have been spoken by the child were so clearly associated with the assault in time, place or circumstances that they were a part of the res gestae.

Reg. v. Lillyman [1896] 2 Q.B. 167; 12 T.L.R. 473 and Teper v. The Queen [1952] A.C. 480; [1952] 2 T.L.R. 162; [1952] 2 All E.R. 447, P.C. considered.

(2) It was for the prosecution to establish that the statements to the police were made freely and voluntarily and not under the influence of improper inducement: Reg v. Thompson [1893] 2 Q.B. 12; 9 T.L.R. 435. The evidence of the appellant, however (on the acceptance of which the judge based his ruling), showed various reasons, which pointed collectively to the advantages that would result from a confession and which were very real inducements, why he made the statements. Further, in the circumstances of this case an acknowledgment by the appellant of a caution that he was not obliged to say anything was no indication that the inducements no longer continued to operate. The statements were accordingly not admissible, and, there being no other evidence to support a conviction, the appellant was denied the certainty of acquittal. He had been deprived of the protection of the law and the appeal would be allowed.

Ibrahim v. The King [1914] A.C. 599; 30 T.L.R. 383, P.C. considered.

Judgment of the Supreme Court of Bermuda reversed.

APPEAL (No. 16 of 1963), by special leave, from a judgment of the Supreme Court of Bermuda (Abbott C.J. and a jury) (February 12, 1963) whereby the appellant was convicted of indecently assaulting a girl under the age of 4 years and was sentenced to two years' imprisonment.

The following facts are taken from the judgment of the Judicial Committee: The appellant was arraigned before the Supreme Court of Bermuda on a charge of indecently assaulting, contrary to section 324 (1) of the Criminal Code, a small girl who was just under the age of four. On February 12, 1963, after a trial lasting some days before Abbott C.J. and a jury of 12, the jury by a majority found the appellant guilty. He was sentenced to two years' imprisonment. By special leave granted by an Order in Council dated May 30 the appellant appealed against his conviction.

The main questions which arose for determination were (i) whether evidence was admissible of a statement made by the small girl to her mother shortly after the assault, the girl not being a witness at the trial; (ii) whether certain statements (involving admissions or confessions) made by the appellant to police officers or made in their hearing were rightly admitted in evidence; and (iii) whether, if such statements ought not to have been admitted, the appeal should be allowed.

On the date of the alleged offence (November 3, 1962) the small girl (Wendy Sue Bargett, then aged three years and nine months) was at about 8 p.m. taken by her mother, Mrs. Bargett, in a motor car to a place called the Bermuda Bowl. The mother went bowling and left the little girl asleep on the back seat of the car. The car doors were unlocked. The windows were closed save that the louvres were left open to let in some air. According to her mother the girl was old enough and had sufficient knowledge and intelligence to be able to open the doors of the car had she wished to do so. Visits were paid to the car from time to time either by the mother or by a friend of the mother in order to see how the girl was. At about 9 p.m. or 9.15 p.m., at which time it was raining quite hard, she was seen to be “very fast asleep.” At about 9.30 p.m., when the friend went to the car, one of its rear doors was open and the girl was not there. It was not then raining. A search in the vicinity was made and the mother was then told that the girl was missing. The police were informed at about 9.47 p.m. and arrived at about 10 p.m. In the course of the search which they made two pairs of panties which the girl had been wearing were found on the ground under or near a car in the car park. That was at about 10.15 p.m. At about 10.40 p.m. the police received information over the police-car radio as a result of which they went to the house of a Sergeant Cochrane, where the girl then was. The police took her back to the Bermuda Bowl and restored her to her mother. The mother found some blood on the girl's finger and body. In reference to what then took place the mother later gave evidence before the examining magistrate. She gave evidence of what her girl had said to her. The mother's evidence before the examining magistrate included the following passage:

“I lifted up her dress and I found blood on her body. I do not recall Wendy Sue saying anything to me at that time. But she did say that I should have looked the other way, I do not know what she meant. Then I asked her who took her out of the car. I asked this and she said that she did not know. I then asked her what did the person look like, and she said that it was a coloured boy. She did not say anything more after that.”

At the trial evidence as to what the girl had said and her statement that “it was a coloured boy” was held to be inadmissible. On behalf of the appellant, who was not coloured but white, it was submitted before the Board that the statement should have been held to be admissible.

The girl was then taken to hospital and was examined by a doctor who found that she was bleeding from the vagina and had scratches and a stretch tear of the hymen. The doctor's view was that nothing larger than a finger had passed through

The evidence concerning the movements of the appellant (a staff-sergeant serving in the United States Air Force who was 27 years of age and a married man with three children) was as follows. He had come off duty at the airport at 4.45 p.m. He went with some friends to a bar and there had some drinks. With a friend (Sergeant Donovan) he then went to a certain inn where they had drinks. They met Sergeant Cochrane, who invited the appellant to his house to celebrate his (Sergeant Cochrane's) birthday. The appellant went in Sergeant Cochrane's car to Sergeant Donovan's house and on the way drank some neat sloe gin from a bottle. At Sergeant Donovan's house the appellant had another drink. Before going on duty that day the appellant had left his own motor car at Sergeant Donovan's house. The appellant then went in his own car from Sergeant Donovan's house to Sergeant Cochrane's house. He arrived there at about 8.45 to 9 p.m. He then seemed to be very drunk. He did not stay long and he was later seen by Sergeant Cochrane backing his car away from the house. He was next seen at the Bermuda Bowl. The evidence concerning the time when he was there seen was divergent. A witness (Mrs. Klemmer) said that she saw the appellant at the Bermuda Bowl between 9 and 9.10 p.m. She said that he was drunk. Another witness (Richardson) said that he saw the appellant driving his car from one of the parking places near to the Bermuda Bowl and said that in the process the appellant's car touched another car. That witness put the time at about 9.15 or 9.20 p.m. Another witness (Simms) said that he saw the appellant at the Bermuda Bowl some time between 9.50 p.m. and 10.10 p.m. That witness said that the appellant was obviously very drunk and that he almost fell down when he came in the door and then turned and went out again. The appellant then arrived again at Sergeant Cochrane's house. The party there was still going on though most of the guests had left. One witness (Neberman) said that at some time between 10 p.m. and 11 p.m. the appellant arrived at Sergeant Cochrane's house. The witness said that there was a girl some 10 or 15 feet behind the appellant and...

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