(2000) 170 (2000) 109 v Kanaan

(2000) 170 (2000) 109 v Kanaan - [1922] HCA 4 - HCA 1922 case summary — Zoe

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so far as they are relevant to a point within my own jurisdiction to determine. And it is precisely because I apply the same rule to the remaining point, and decline, against the prisoner, to usurp the function of the jury in determining whether the facts in the Harding confession amounted to wilful murder or manslaughter, that I think the question should go back for a new trial. It does not appear, in my opinion, that the jury have determined that point in the way the Jaw requires or at all. The summing-up never mentioned the word "manslaughter." It is true the prisoner's counsel did not suggest it. It would have been probably unwise to have suggested it for the prisoner. Neither did the Crown suggest it. And the learned Judge, not having heard any suggestion of manslaughter from either side, did not refer to it. It was not surprising that the learned Judge, who plainly took the very greatest care in placing in systematic order the aspects, so to speak, of the three confessions, should have abstained from mentioning manslaughter. But it is unfortunate that the possibility was not pointed out, because, as established by two great decisions that in my opinion deserve to stand as pillars of the criminal Jaw and should never be weakened by any Court, except so far as the Legislature specially chooses to relax them, no prisoner can validly consent to any serious breach of the administration of criminal law. It is such a breach if, in a case where manslaughter is on the evidence a possible verdict, the necessary instruction is not given to the jury. The first case is R. v. Bertrand (1), where the Privy Council says: '' 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 their Lordships reaffirm "the common understanding . . . that a prisoner can consent to nothing." The other is R. v. Hopper (2), where Lord Reading C.J., for the Court, says : - 't We do not assent to the suggestion that as the defence throughout the trial was accident, the Judge was justified in not putting the question as to manslaughter. Whatever the line of defence adopted by counsel at the trial of a prisoner, we are of opinion that it is for the Judge to put such questions as appear to him properly to arise upon the (1) (1867) L.R. 1 P.C., 520, at p.534. (2) (1915) 2 K.B., at p. 435.

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if we come to the conclusion, as we do, that there was some evi- dence - we say no more than that - upon which a question ought to have been left to the jury as to the crime being manslaughter only, we think that this verdict of murder cannot stand." It was suggested that this case was weakened by later cases, such as R. v. Clinton (1). So far from thinking so, I am of opinion that it was in substance reaffirmed by the observations distinguishing it, The last-mentioned case is only the converse of the principle in R. v. Hopper, that is, the facts in Clinton's Case did not raise a possible case of manslaughter. Clinton's Case has not, | believe, found its way into any other report, and merely because it is unimportant Hopper's Case stands, and 1 trust will always stand, as a protective landmark of British criminal law. Otherwise any poor undefended criminal appealing against a verdict of murder when manslaughter ought to have been left to the jury, would be denied redress because he had waived his right. The learned Crown Prosecutor contended that this was the law. Not only is Bertrand's Case (2) opposed to that, but so is every fundamental consideration of our law and sense of justice. The learned Judges of the Supreme Court, however, say in effect, that a verdict of manslaughter was impossible; and on a ground never presented to the jury. If that be a tenable position, their judgment is of course correct. But, as I shall show, that position is not maintainable in point of law. The summing-up was: obviously based on the supposition that manslaughter was impossible, | and the effect of the summing-up as a whole was that, if any one oj the confessions, no matter which, was accepted as true, that was sufficient in itself and taken by itself to require a verdict of murder, and that the alternative, and the only alternative, was acquitta based really on the rejection of all the confessions. The learned Judge at the beginning of his charge to the jury observed : - * The accused, as | have said, is charged with the crime of murder, and, if you are satisfied beyond reasonable doubt that he caused the death

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by far the most prominent, confession 'was the Harding confes- sion; and this is placed in precisely the same category as the other two. The learned Judge observed, in introducing this con- - fession: "There is a third witness who has been called to give evidence of deeply incriminating statements made by the accused, That witness is Sydney John Harding, who was in the Melbourne Gaol at the time when he says that this statement was made to him." The date of the alleged confession was 23rd January. Hard-_ ing is an oft-convicted criminal. Now, the Harding confession was pressed greatly at the trial. Three things are of importance for the present circumstances in connection with this confession, It relates ; (1) that Ross ravished the girl while she was asleep inthe room called the cubicle, where there were blankets ; (2) that after he had ravished her and completed the outrage he left the room, she having - fainted, and after a little time she commenced again to call out, and that he went in to stop her, and in endeavouring to stop her from singing out he must have choked her ; (3) that he subsequently that night tore her clothes into strips and bits, and went round with his bicycle and distributed them along the Footscray Road and else- where. This confession, like both the other two, was read to the jury during the Judge's charge. His Honor also drew attention to another portion of the Crown case relied on 'in corroboration of - Harding's statement, namely, the finding of some pieces of serge - on the Footscray Road on 26th and 27th January by Mrs. Sullivan after seeing a newspaper account of the Harding confession. The ] finding of these pieces of serge, identified as part of the girl's dress and found in extremely good condition on the main Footscray Road, folded together, practically a month after they were supposed to have been scattered there by Ross, was stressed as corroborating Harding, and, what is more, as indicating that the story con: tained in the Harding confession was true. The more the pro- ceedings are looked at, the more it becomes evident that the Harding confession occupied a position of extreme prominence, and it is essential to notice that the Harding confession does not fall into either of the first two branches of the definition, Accord- ing to that confession, as I have said, the killing was neither (1) intentional nor (2) during intercourse, and therefore must, if

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The jury, by its verdict, found the accused guilty of murder, the trial Judge having explained what would constitute murder. "If you are satisfied beyond reasonable doubt that he caused the death of this young girl, and that he caused her death with the intention of bringing that death about, or if you are satisfied beyond reasonable doubt that in the course of having sexual intercourse with that young girl, he caused her death, or that he caused her death in furtherance of that purpose, he would be guilty of murder." This direction was absolutely clear and admittedly correct ; it follows an ordinary formula appropriate to such cases, and there is no ground that I can see for the assertion that each separate hypothesis suggested was directed to one specific witness or piece of evidence. The direction, indeed, precedes any reference to the evidence. "In furtherance of that purpose " refers to the purpose of having sexual intercourse ; and if the killing took place after the intercourse it would not be "in furtherance " of the purpose. The verdict is general - guilty " ; and there is nothing to show which of these three hypotheses the jury accepted; but there was ample evidence on which the jury could have accepted any one of the three. The accused elected to give evidence on his own behalf, denied on oath, as well as in a written statement made to the detectives, that he had spoken to the girl, or had anything to do with her; and, whichever view the jury took, the twelve jurors necessarily found, from the form of the verdict, that in this denial he lied. The jury believed as to this fact the witnesses for the prosecution, and did not believe the accused. In three alleged confessions made by the accused, he admitted sexual intercourse, and in two of them he admitted that he killed the child. One confession - that to Matthews - was made on 31st December, directly after the death; the other - to Harding - was made on 23rd January, when he was under arrest, and in imminent danger of his life. These two confessions of killing vary in detail, but they do not vary as to the two facts which I have mentioned ; and if there is any inconsistency, it is an inconsistency in the prisoner's statement, not any inconsistency in the evidence of the witnesses to the alleged confessions. A combination of circumstances has led to dispropor- tionate attention being given to the alleged confession to Harding ; but if the alleged confession to Matthews were accepted by the jury,

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