Peacock v R [1911] HCA 66

Peacock v R [1911] HCA 66 - HCA 1911 case summary — Zoe

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Up to that point the Judge's notes are in the form of direct narration, but there they suddenly change to indirect: narration. ' Prisoner said the best thing I could do is to say she came here to try and bring about a miscarriage, and I had to attend to her at once." Then the notes return to the form of direct narration, Under these circumstances it is impossible to say what really was said - whether prisoner said - * The best thing I can do," or "the best thing you can do" is to say, &. Perhaps we may take it that what was said is - * The best thing we can do is to say," &e. Say what? According to the statement on the Judge's notes, to say, "We agreed to bring about a miscarriage. I had to do it, and she died." That is to say that persons in peril of being found out in committing murder are to say that the best thing to be said is - " We did it.". That is preposterous, and no jury would be justified in accepting it. Another suggestion was - " We must tell some lie or other, Let us tell that lie, that we killed her." That is altogether too absurd. The third suggestion is that the Judge misunderstood what Poke said, and that what was really said was - * The best thing we can do is to say she came here having tried to bring about a miscarriage." Mr. Duffy suggested that we should look at Poke's evidence in the depositions in the Police Court, and that we should find that this was the actual fact. From any point of view it is an extremely unsatisfactory statement. When that statement was made, whatever it was, Poke said - * We are not married." Up to that time the prisoner undoubtedly believed, according to the evidence, that they were married. He went on to say that the prisoner said - "If you are not married you had better leave it to me. Do not come to this house again. It might draw suspicion. Meet me to-morrow night." I shall have occasion to refer to that conversation again. On Sunday, the 20th, Poke again visited the house, and was told that Mary Davies was slightly better. On the 21st he went again, and prisoner said - *Things are as bad as they can possibly be." . On Tuesday, the 22nd, he went again, and the prisoner said - * She is dead." Then, Poke says, they discussed the ques- tion of the disposal of the body. The doctor described the

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circumstances of her death and asked where her people lived, and stated that if her people did not inquire for her for a fortnight he could have her secretly buried. He said he would put her clothes in a bag and take them to his farm at Carrum, as he could easily burn them there, and Poke would have to keep his mouth shut. He told Poke to meet him again on the fol- lowing Monday night. Poke went to meet the prisoner, but did not then see him, but he met him on Tuesday, the 29th, at his house in the evening, and he says that he had this conversation with him : - '"I said, ' What have you done with the body ?' and the prisoner said - 'It is buried.' I said - ' Where?' Prisoner said - 'It is better known to myself.' I said - ' What of the clothes? Prisoner said - 'They are burnt. I only got rid of the last yesterday.' I said - I would like some of the jewellery as a keepsake ;' and prisoner said - 'The jewellery has gone with them. It is the first time I have had anything like this for years. Isaid - I think the case is all carelessness." Prisoner said - "Oh, no! it was not.'" On the same evening the police came to the prisoner's house. He refused to answer any questions and denied everything. Poke was then brought in and confronted with him, and the conversation I have just read - which is said to have taken place between the prisoner and Poke - was stated to him. The prisoner merely refused to say anything. Search was then made by the police, and three pieces of jewellery identified as the property of Mary Davies were found in one of his pockets. There was also found in the scullery a neck wrap or fur boa which had been cut into several pieces, and which was identified as hers. It was proved also by other evidence that on Sunday, the 27th, the prisoner was at his farm at Carrum and lit a large fire in the scrub. Another witness saw him carrying a bag there on that day. On 2nd September the ashes of the fire were examined, and in them were found several metal bodies of buttons, other buttons, such as are commonly worn on women's clothing, including suspender buttons, safety pins, hooks and eyes and burnt clothes, boot eyelet holes and a boot heel.

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had an accident two days before she became suddenly ill. So far, the evidence is consistent with the prisoner's statement that she was threatened with a miscarriage, that she came to him for treatment, that the miscarriage occurred, and that she died. The learned Chief Justice told the jury, in effect, that if they believed that the prisoner made away with the body they could disregard his statement altogether. Now what is the real weight to be given to the fact of making away with the body? On this point I will read a passage from Best on Bvidence (3rd ed.), p. 518 : - " Undoubtedly suppression or fabrication of evidence by a party accused of a crime, is always a circumstance, frequently a most powerful one, to prove his guilt. Too many instances have occurred of innocent persons alarmed at a body of evidence against them which although false or inconclusive they feel themselves unable to refute, having recourse to the suppression or destruction of criminative and even to the fabrication of exculpatory testimony." 'These instances are given of the danger of drawing such an infer- ence, of which one is the not uncommon case of a false alibi. It is contended, however, and the learned Chief Justice seemed to think, that everything may be presumed against a man who makes away with a dead body. In my opinion the fair inference to be drawn is that the object in making away with a body is to prevent the discovery of some fact that would be apparent, if it were not made away with, and would be likely to imperil the life or liberty of the man who does it. In this relation it is important to consider the facts of the particular case. What fact could have been ascertained by discovery of the body? 'The only fact that could have been ascertained was that the miscarriage had been brought about by some violence. In the nature of things nothing more could have been discovered. In some cases the mere making away might be sufficient, as in the Queensland eases which were referred to where the murderer burned the body. But in other cases it may not be sufficient. In cases of infanticide an inference of murder was often sought to be drawn from the concealment of the body. In England the legislature once passed an Act providing that, if a mother concealed the body, she could be convicted of murder, unless she could prove by some

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~ stantive offence. It seems to me that suppression of evidence ought. not to put a prisoner in any worse position than if the evidence had not been suppressed. He may not benefit by the concealment. But why should he be in a worse position than if the true facts had been discovered ? What then could have been discovered in this case? Merely that the miscarriage was not accidental. That is all. It leaves the problem as to whether it was brought about before she came to the hospital or not as it was before. Otherwise you are in reality convicting a man not of killing a woman, but of concealing a body. The argument is, he concealed the body, therefore he is guilty of murder. It is very important again to remember that the idea of concealing the body did not occur to anyone until the prisoner discovered that Mary Davies was not married. When it was disclosed that she was not married an entirely different complexion might well seem to him to be put on the matter. He found himself involved in a case which would probably be presented as one of abortion of a young woman brought to his house for that purpose. His case from that point of view might well seem to him to be practically hopeless. 'Would anyone believe the story that she came as a married woman? That idea might, indeed, impress a man who was not of unusual fortitude of mind. In this connection, I will read another passage from Best, p. 543: - * This rule rests upon principles which have their foundation in the deepest equity and soundest policy. When the crime is separable from the person of the criminal many sources of error are introduced which do not exist in the opposite case. 1. A given event the origin of which is unascertained may be the result of almost innumerable causes having their source either in accident or the agency of different persons; 2. The danger of the inference of his guilt from the event being aggravated by the imprudence of the accused or even his criminal agency in other matters ; 3. In witnesses and tribunals the love of the marvellous and the desire to detect great crimes committed secretly."

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to subvert the purpose of the Act), they should proceed to con- sider the several sets of facts which the Crown propounded as indicating the guilt of the accused, and also the evidence of Poke as to his alleged conversations with the prisoner. Thus they were, in effect, told that they need not consider the Crown case unless they first decided not to believe the statement. The duty of putting the Crown evidence and the statement side by side, and arriving at their conclusion after close comparison, was not suggested in that connection. The process actually suggested might, however, have been, by inference, unduly favourable to the accused, but for what followed it. His Honor, after examin- ing all the evidence - meaning, we may take it, the evidence exclusive of the prisoner's statement - reverted to the statement, which he pointed out was not on oath, but which the prisoner was by law at liberty to make. They might treat it, he said, as evidence, and might act upon it if it were not in conflict with any other evidence which was sworn, but where it was in conflict with such other evidence they ought to disregard it and act upon the sworn evidence. The jurymen having retired, Mr. Bryant, for the accused, asked for a further direction to them, fearing that, if they did not fully rely on some of the sworn evidence for the Crown, they might still suppose they were bound to act on it merely because it was sworn, rather than on the prisoner's statement. Mr. Bryant's fears were fully justified by the terms of the direction, which indeed authorized the jury to omit that very duty on the performance of which, as I have pointed out, the Statute entitles the accused to insist - the duty, namely, of comparing and con- trasting the statement with the sworn evidence for the prosecu- tion (of course, with the right of preferring the statement), not only where it gives an explanation consistent with the case for the Crown, but where it is in absolute contradiction of the statements of the Crown witnesses. However His Honor very rightly recalled the jury, and I take from the report of his further direction the following statement, which we may use, and which was used in the Supreme Court. "Learned counsel is ef opinion that you may misunderstand what I put to you as the difference between the sworn statements and the prisoner's statement. I have told you that wherever the prisoner's statement does not come in con-

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tion to the jury is concerned, I will deal with presently. For the purpose of considering the present question I will treat it as if the jury were entitled to act upon the evidence, as indeed I think they were. Poke, then, has several conversations with the accused, and by that means on Thursday, the 17th August, he learns a fact which is proved also from other sources, that on the 15th she had had a fall, and he sees her and finds that she has eut or seratched her nose and her hand. She was then drowsy and pale. There is no evidence, nor is there any statement by the accused, that the fall had anything to do with her subsequent illness, puerperal fever. Poke never saw her afterwards up to the 16th October, when he gave evidence at the trial. [His Honor then quoted from Poke's evidence of his conversations with the accused up to the 29th of August.] This evidence was offered in proof of death and in proof that the prisoner secretly disposed of the body and of her belongings. [His Honor then quoted from the evidence of the visit of the accused to Carrum, of his having been seen tending a fire there, and of the subsequent discovery in the ashes of partially burnt articles corresponding with articles that Mary Davies had worn, or had with her, when she left her home.] These circumstances, together with the statements of the accused to Poke, were of course evidence, if believed, that the girl was dead, and that he had burned her belongings and secretly buried the body, thereby carrying out intentions which he had previously expressed to Poke, and which he afterwards admitted to the same person that he had fulfilled. Did the evidence then warrant the jury in inferring, as they obviously did, that the accused caused the death of Mary Davies? It is clear to my mind that it was quite open to them, if they thought it right, to draw that inference. As we all know, the ordinary course, where death occurs under circumstances of innocence, is for the practitioner to report it and to give a certificate of its cause. It is common ground that the accused administered some treatment. If there was no illegal operation, the appearance of the body would not indicate anything tending to criminate. The jury were, of course, not bound to infer guilt from the disappearance of the body; nor, on the other hand, were

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on the uncorroborated evidence of an accomplice. In the case of R. y. Wilson (1), decided as lately as the 7th February this year, Lord Alverstone C.J., delivering the judgment of the Court of Criminal Appeal, said - "It must not be supposed that corroboration is required amounting to independent evidence implicating the accused . . . In addition to Attwood's Case (2), I would refer to the words of Maule J., in R. v. Mullins (3)

Confirmation does not mean that there should be independent evidence of what the accomplice relates, or his testimony would be umnecessary;' and to the words of Cave J., in In re Mewnier (4) - I know of no power to withdraw the case from the jury for want of corroborative evidence, and I know of no power to set aside a verdict of guilty on that ground." Previously, in R. y. Tate (5), His Lordship, after expressing assent to the proposition that "there is.no definite rule of law that a prisoner cannot be convicted on the uncorroborated evidence of an accomplice," had quoted the same passage, and remarked - "T think he ought to have added 'assuming that the jury was cautioned in accordance with the ordinary practice'" In R. v. Tate (6) the Judge had not directed the jury, "in accordance with the settled practice,' and he had led them to suppose that if they believed the accomplice they might properly convict, although his evidence was without corroboration. Under these cireumstances the Court was of opinion that there had been a miscarriage of justice, and on that ground the conviction was quashed. This was apparently an exercise of the power conferred in the previous year by the Oriminal Appeal Act, sec. 4 (1). 'The Court added (7) - * We should not, fhowever, have taken this view, notwithstanding the Judge's departure from the practice, if we thought there was in fact substantial corroboration upon the evidence. But in our opinion there was no such corroboration." On a careful consideration of these two cases. and of all the others cited to us, I think the following propositions are war- ranted by the authorities - (1) That where the evidence of the

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The prisoner was a medical man 72 years of age, with 40 years experience in his profession. He kept a hospital for women only, and apparently had kept it for some years, though for how many does not exactly appear. We must take it as the case went to the jury that there was no evidence that the hospital had ever before been used as a place for procuring abortion. It was proved that the girl herself arranged with the prisoner for being treated in the hospital, and that, under that arrangement, she entered on the 9th August. With that evidence the prisoner's statement is in accord. There seems to have been some discussion as to the terms of payment, and a witness named Lack, through whom a girl friend of Mary Davies had supplied £25 for the purpose, went to the hospital, saw the prisoner there, and endeavoured to get him to take a bill, which he refused to do. No inference is to be drawn against the prisoner from his refusal to deal on credit, for, apparently, Poke and Mary Davies were at that time unknown to him. Lack's evidence, however, corroborates the circumstance of Mary Davies having entered the hospital under the name of Mrs. Nelson under some arrange- ment made by her with the prisoner. Whether the arrangement was as suggested by the Crown, the payment of £25, or as stated by the prisoner, £5 per week payable in advance, is left uncertain. She took with her to the hospital a dress basket containing some clothes. The clothes she was wearing when she entered and and those she took with her are described by her mother and sister who knew with some exactness, apparently from personal observation, the clothes she had in her possession. She had « serge dress on which were large metal buttons covered with the same material and blouses with mother-o'- pearl buttons. She seems to have worn stocking suspenders with the usual attachments kept up by a waist belt with buckle, also women's boots of the ordinary light kind. She entered the hospital as I have said on the 9th August but nothing eventful happened until the 17th August.

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Up to that time Poke had been visiting her from time to time and she appeared to him to be going on well. On the 17th August Poke went to the hospital and had a very important interview with the prisoner. The prisoner told him that the girl was suffering from puerperal fever, which, he explained, arose from absorption of poison into the blood. In answer to Poke's question he said the disease was dangerous. Poke went to her room and found the girl looking ill and drowsy. The prisoner followed him and explained that on the night before - the 16th

she had fallen down going to the lavatory and cut her face, That was said in explanation, apparently, of some cuts appearing on her hands and face. It is important to note that he did not then, nor has he at any other time attributed any ill consequences to the fall. On the next night, Friday, 18th August, Poke went to the hospital again, The girl apparently was very ill - in a critical condition. Then took place the first of a series of con- versations which the jury would clearly be entitled to regard as incriminating the prisoner. Before referring to these in detail, it will be well to consider the relation in which the prisoner stood to Poke at that time and the right of the latter to be informed of her condition. It is plain that Poke was aware of the terms on which she had been received into the prisoner's hospital but we have no evidence of the details of the arrangement beyond those given by the prisoner himself. He explains in his statement to the jury that she complained of feeling ill and placed herself under his treatment, and that she was suffering from abdominal pains and a discharge of blood. He found there was a threatening of a miscarriage and advised her to take a rest and a course of treat- ment in his hospital for which she would have to pay £5 per week in advance. He further states that from her symptoms he thought it might be necessary, if a miscarriage did occur, to per- form the operation known as curetting. That was the reason he gave for obtaining the written consent of her husband, as he then believed Poke to be, for her treatment. Notwithstanding the difference between the prisoner's case and that of the Crown in other respects, his statement corroborates the Crown case in the all important fact that the girl was in the hospital under an arrangement that he should treat her for a threatened miscarriage,

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the relations of the prisoner and Poke it is important to note that no one but the prisoner had anything to do with the patient in the way of surgical or medical treatment. At the time of the conversation of which I am speaking the prisoner believed Poke to be the girl's husband. Under these circumstances the latter at the outset of the interview was therefore asking the former as her medical attendant as to her condition. It cannot be doubted that it was the prisoner's duty to give the information asked. The prisoner informed him that she was in a dangerous con- dition and suffering from puerperal fever. The medical evidence is that the occurrence of puerperal fever under the circumstances established beyond doubt that there had been a miscarriage. It is clear therefore that the dangerous condition which Mary Davies was in on the 18th August arose from a miscarriage. On the evidence there is no possible way of accounting for her death except that it was from puerperal fever brought on by a mis- carriage. The miscarriage happened in the prisoner's hospital while the girl was under his sole care. As to whether it arose in some way for which he was not to blame or whether it arose from his criminal act the prisoner himself must have known. He alone therefore was able to inform Poke, and afterwards the Court, if he thought fit, how the miscarriage had come about, why the girl died of it and what had become of her dead body. The prisoner's statement to Poke as to the girl's condition when it tirst became evident that she was likely to die is therefore of vital importance. The prisoner said " Mrs. Nelson is very ill. In case anything happens, what are you going to do?" To which Poke replied "I do not know." Some vague expressions made use .of by the prisoner, which immediately followed, have been the subject of much discussion. Probably their real meaning was substantially this: "The best thing to say is that she came here to bring about a miscarriage, I had to attend to her, and it was necessary, in order to save worse consequences to bring about the miscarriage and treat her after." The particular form of expres- sion matters very little. The significant fact for the jury was that the prisoner who, on the assumption of his being innocent, was treating a woman lawfully in the ordinary way in his own 'Vou. XIII. 45

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hospital should ask the man whom he supposed to be her husband what he was going to do if she should die. In the next sentence Poke tells him they are not married. "Then," said the doctor, "Jeave it to me. In that case don't come to the house again, it might breed suspicion. Meet me to-morrow night at the Mel- bourne Cricket Ground at 9 p.m." It may be reasonably asked whether the latter sentences of the conversation could have left the jury in any doubt as to what was in the prisoner's mind; they were certainly entitled to ask themselves whether such a conversation could be reasonably explained on any other ground than that the prisoner knew that the girl's death had occurred under such cireumstances as would make its discovery a very serious matter for him and for Poke. 'The next interview was on the following Sunday night, the appointment for the Melbourne Cricket Ground not having been kept. It was for the jury to consider why such secrecy was observed, why the man so deeply interested in her life, was warned not to go to the hospital to see her at a time when her life was despaired of. Poke, however, on the 20th August called at the Hospital, found that she was slightly better, and arranged to meet the prisoner on Monday night following. He did so, and was then told by the prisoner that things were as bad as they could be. A meet- ing was arranged for the next night at the Fitzroy Gardens, They met accordingly, and an important conversation took place. That was the night of Tuesday, 22nd August. Poke asked how it was with the girl. The prisoner said "She is dead." I need not repeat the remainder of his statement on that occasion in detail. It was to the effect that the girl was dead, and that he had given her chloroform before she died to quieten her screaming. The prisoner next asked how long it would be before her relatives would inquire, and went on to say : "If they do not inquire for a fortnight I can have her secretly buried." He further said : "Tl have to let my housekeeper know; she is my right hand." In other words, he promised to have the body buried secretly, to dispose of the clothing, and undertook that no one should know anything aboutit except the housekeeper and himself. . The death must have taken place on the 21st or 22nd August. On the 22nd the only servants in the house, two girls, were sent away. They

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holiday. Apparently one of them asked to be allowed to stay until the next day, but he said: "No; cannot you stay with your aunt? You had better go to-day." She went accordingly, and the prisoner and his housekeeper were then the only oceupants of the house. The interview of the 22nd August was the last which Poke and the prisoner had for some time. It is important to observe that at its close the latter said: " You will have to keep your mouth closed or it will be bad for both of us." Here again the jury were entitled to ask themselves whether such a warning could possibly be explained on any other suppo- sition than that the miscarriage, of which the girl died in the prisoner's hospital and under his treatment, had been brought about by some unlawful act on his part. The next meeting was arranged for the 29th August. In the meantime, on the 27th, the prisoner was at his farm at Carrum. On that day he made a fire in one of the paddocks, and there was evidence that in that fire was burnt woman's clothing which, judging by the remains in the ashes, corresponded generally with the clothing which had been in the girl's possession in the hospital. Those were cireum- stances from which the jury might well conclude that the prisoner had carried out his promise to Poke to burn the girl's clothes at his farm. On Tuesday, the 29th August, Poke saw the prisoner at the hospital. The latter expressed his fear that Poke was being watched, told him that the girl's clothes had been burnt, that he had got rid of the last of them the day before, and that her jewel- lery had been burnt with them. Incidentally it may be mentioned that the latter statement was not true as the jewellery was after- wards found in his possession. It was also inconsistent with the statement he made in Court that the girl had handed the jewel- lery over to him in payment for accommodation at his hospital. On that night, the 29th August, the police entered the prisoner's premises. An interview took place which has been detailed already. The prisoner denied at first that the girl had ever been at the hospital. Finally, when the document purporting to have been signed by her husband, authorizing her to be treated by the prisoner was found by the detectives, he admitted that the girl had been there,but declined to answer any other questions. Poke

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was then confronted with him and went through in his presence a statement of what the prisoner had said to him on that evening. The prisoner declined to answer or explain any of Poke's state- ments. Such were the material facts from which the jnry were asked to draw the conclusion that the prisoner was guilty of the offence with which he was charged. It was their duty, applying to the evidence the principles to which I have referred, to draw the conclusion to which all the cireumstances taken together reasonably led them, to the exclusion of any other reasonable conclusion. As to some issues of fact the reasonable conclusions were not difficult. One inference inevitably followed from the evidence as a whole, namely that the girl died at the prisoner's hospital from the effect of a miscarriage. The miscarriage might have occurred without any fault on his part. On the other hand it might have been brought about by his criminal act. The crucial matter therefore to be determined was whether the inference that the miscarriage had been brought about by the prisoner's criminal act was the only inference that could reasonably be drawn from all the circumstances taken together. 'There was one other inference which it has been suggested might have been drawn, namely, that the prisoner had arranged the secret burial of the body and the destruction of allevidence of the girl having been at the hospital, be- cause he feared the consequences to himself of the death through miscarriage of an unmarried woman brought to his hospital by her paramour. It is suggested as possible that, for that reason, he followed the course he took in order to conceal the evidence which an examination of the body might have disclosed. In my opinion it would be practically impossible for a jury on the evidence before them to reasonably come to the conclusion that any sane man in the prisoner's position, innocent of wrongdoing, would, for such a motive as that suggested, take upon himself the awful responsibility of concealing a death in his own hospital in the midst of a city where the law and the usages of a civilized community render it essential that every death shall be made public. The obtaining of a death certificate before burial, the registration of death, the publicity of ordinary burial in a cemetery are part of the law and the usages of most civilized societies. Yet it was argued that, for the very inadequate reason

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