Perry v The Queen

[1982] HCA 75

High Court of Australia|1978-07-01|Before: Brennan JJ

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Court

High Court of Australia

Decision date

1978-07-01

Before

Brennan JJ

Source

Original judgment source is linked above.

Judgment (94 paragraphs)

[1]

The applicant, Mrs. Perry, was tried on indictment before the Supreme Court of South Australia on two charges of attempting to murder Mr. Perry, who is her third husband. The case for the prosecution was that from about 1 July 1978 until about 30 November 1978, and again from about 1 February 1979 until about 31 October 1979, the applicant administered poison to her husband with intent to kill him. She was convicted on both counts. She appealed to the Court of Criminal Appeal on a number of grounds, but her appeal was dismissed. She then applied to this Court for special leave to appeal. The main ground on which the application was made (and the only ground which the Court permitted to be argued in full) was that the learned trial judge had wrongly admitted evidence which, according to the Crown, showed that three other persons with whom the applicant had had a close relationship had died of poisoning. This Court granted special leave, allowed the appeal, set aside the conviction and ordered a new trial but announced that the reasons for the decision would be given later. I now give my reasons for joining in the decision.

[2]

There was clear evidence that during part at least of the periods in question the applicant's husband, Mr. Perry, became seriously ill as a result of poisoning by lead and arsenic, probably in the form of lead arsenate. The applicant, who was living with Mr. Perry, had the opportunity to administer the poison to him. She stood to benefit financially from his death, under a number of policies of insurance. It is unnecessary to review the details of the evidence against the applicant, other than that whose admissibility is in question, and undesirable to comment on its weight, since a new trial has been ordered. The defence was that the poison had been accidentally ingested by Mr. Perry over a period of time and that the applicant had not played any part in causing him to take it. Mr. Perry himself gave evidence for the defence and asserted the innocence of the applicant. The theory advanced by the defence was that Mr. Perry must have ingested the poison while he was working on the renovation of some old musical instruments, especially an orchestrelle (a sort of large organ), which contained the remains of rat or insect poison, one of whose components was arsenic, and contained also lead dust from crumbling lead pipes in the instruments.

[4]

Mr. Montgomerie died on 9 April 1962, also from acute arsenical poisoning. He was an alcoholic, and was given to moodiness and depression; he had twice been admitted to a psychiatric hospital. He had been living with a Mrs. Walker, who had left him on 7th April 1962, after he had attempted to strangle her. On the following day, 8 April, the applicant took her mother to Montgomerie's house, so that she might look after him. The applicant said that Montgomerie was then incoherent, as he usually was after drinking heavily. She left her mother there for the day but picked her up that evening. On 9 April she telephoned Montgomerie, and receiving no response, went to his house, where she found him dead. The applicant may have been the last person to see Montgomerie alive, and the first to find him dead. Some bottles were found on a bedside table, including a bottle containing a small quantity of wine and some arsenic. A post mortem examination showed arsenic in the body. There was evidence that a sister of the applicant had, a few days before, bought some weed killer, the nature of which was not established by the evidence, and that the container, with a little of the weed killer in it, had been placed by the applicant on a shelf at her mother's house. This, it was said, showed that the applicant had access to the poison. The defence argued that the facts pointed clearly to suicide. The Crown argued that if Montgomerie had committed suicide one would have expected to find the bottle or tin from which the arsenic had been obtained and put into the wine bottle; none was found, but there was evidence that old bottles at Montgomerie's house had on the morning of the death been cleaned up and thrown away by the applicant and her sister, Mrs. Henderson. There was also evidence that the applicant, when questioned by the police, gave her name as Hulse, which was the name of her first husband. Many of the facts relied on by the Crown were contested. Montgomerie had no insurance policies and the applicant did not stand to gain from his death. The only motive for murder suggested by the Crown was a desire to rid the family, and particularly the applicant's mother, of a tiresome burden.

[5]

Mr. Duncan died on 21 March 1970 from an overdose of barbiturates. He had commenced to live with the applicant about the end of 1967. Insurance policies on his life had been arranged by the applicant during 1968 and she received payment under them after his death. He had swallowed about twenty tablets of barbiturates; it is most unlikely that the applicant could have forced him to swallow them, and although it was suggested by the Crown that perhaps the applicant had persuaded him to take them, there was nothing to support that suggestion. Duncan was a heavy drinker, and in bad health, and one possibility was that he had committed suicide. However, the Crown particularly relied on evidence which, it was submitted, showed that Duncan had suffered from arsenical poisoning over a considerable period before his death. Duncan had had operations for haemorrhoids in 1944 and 1957. By the beginning of 1968 he was seeking medical treatment for anal trouble, and underwent another operation for haemorrhoids during that year. From about the end of that year he was complaining of some loss of bowel control and pains in the lower abdomen, and by the end of 1969 and the beginning of 1970, of diarrhoea, incontinence, vomiting, pain, and other symptoms, including enlargement of the breasts. None of the many doctors who examined him diagnosed heavy metal poisoning, and no test was made, before his death or post mortem, for the presence of arsenic. A witness for the Crown, Dr. Manock, said that Duncan's symptoms, as described to him, were consistent with, but not specific for, the ingestion of lead arsenate. However, he saw no signs of heavy metal poisoning when he conducted an autopsy. A witness for the defence, Dr. Lander, thought it unlikely that Duncan was suffering from heavy metal poisoning, and said that some symptoms were contra-indicative of such poisoning. It was conceded by the Crown that the evidence relating to Duncan, if viewed in isolation, was insufficient to enable a jury to find that he had suffered from heavy metal poisoning.

[13]

Clearly on principle it is not admissible, on a charge of murder or attempted murder by poisoning, to give evidence that the accused has poisoned other persons, where that evidence shows no more than that the accused is a poisoner - one who has a tendency to poison others. However, where a number of poisonings have occurred, and the victims have all been associated with the accused person, the evidence of the other poisonings may be admissible to support the inference that the accused was responsible for the death in issue, because it would be contrary to ordinary experience that a series of poisonings, caused by accident or suicide, would occur by coincidence in the circle of persons with whom the accused was associated. In such cases, the evidence is admissible for reasons similar to those which governed the admissibility of the evidence in Makin v. Attorney-General (N.S.W.) and R. v. Smith, although it must be said that the reasons given in the judgments have not always explained the admissibility of the evidence in this way. A leading case is Reg. v. Geering [12] , a case which has been mentioned with approval in the House of Lords, the Judicial Committee and this Court. Geering was charged with the murder of her husband by arsenical poisoning, and evidence was admitted that within the seven months following her husband's death three of her sons also suffered from arsenical poisoning; two of them died. All of the victims lived in the same house as the accused, who prepared their food. Pollock C.B. said that the evidence was admissible to confirm that the death of the husband was occasioned by arsenic; it was further argued that the evidence was admissible to prove that the death was not accidental, and the headnote states that the decision rested on that ground also. It appears that there was direct evidence that the husband was poisoned by arsenic but it is not clear from the report whether there was any dispute as to the cause of the husband's death. If the cause of death was only technically in issue, the evidence should not, in my opinion, have been admitted to confirm that the husband's death was occasioned by arsenic. To use the evidence for that purpose, in those circumstances, would have been to credit the accused with a fancy defence in order to rebut it with a damning piece of prejudice, to use the words of Lord Sumner in Thompson v. The King [13] . In Martin v. Osborne the judgments of Dixon J. [14] and Evatt J. [15] show that it is the improbability that a number of deaths would occur in similar circumstances merely by coincidence that gives the evidence its probative force in such cases. Dixon J. said [14] :

[14]

If four close relatives of a woman, dwelling in her house and eating meals prepared by her, die of arsenical poisoning one after another within a few months, the inference that she wilfully administered the poison has more support than if one death only occurred in such circumstances (R. v. Geering). Another case in which evidence of this kind was clearly admissible on the same principle is Reg. v. Grills [16] . In that case there was evidence of a series of thallium poisonings in a small group of people, and that the accused was the only person associated with them all. The frequency with which the symptoms of poisoning followed upon the association of the victim with the accused excluded as unreasonable any explanation of the death of the person with whose murder she was charged other than that she had administered the poison [17] . Other cases are not so easy to explain. In R. v. Armstrong [18] , the accused was charged with the murder of his wife by arsenical poisoning. The defence was suicide. Arsenic was found in his possession but he claimed that it was for use as a weed killer. Evidence was admitted that eight months after the death of his wife he attempted to poison another person with arsenic. It was said that the fact that the accused used arsenic for a similar deadly purpose was evidence from which the jury might infer that the poison was not in his possession for an innocent purpose [19] . With all respect, the manner in which the poison was used eight months later hardly seems relevant to the question for what purpose it had been kept at the time of the murder. The evidence would no doubt have been relevant had it been suggested that the wife's death was accidental, but that was not suggested. However, it would not be profitable to discuss the facts of the various cases in which evidence of poisonings has been either admitted or rejected, for one cannot decide the question whether evidence is admissible in one case simply by comparing the facts of that case with those of another. What is necessary is to apply the principles to the circumstances of the case under consideration. 1. (1849) 18 L.J.M.C. 215. 2. [1918] A.C. 221, at p. 232. 3. (1936) 55 C.L.R., at p. 376. 4. (1936) 55 C.L.R., at pp. 384-385. 5. (1936) 55 C.L.R., at p. 376. 6. (1954) 73 W.N. (N.S.W.) 303. 7. (1954) 73 W.N. (N.S.W.), at p. 304. 8. [1922] 2 K.B. 555. 9. [1922] 2 K.B., at p. 566.

[29]

Traditionally, the explanation of the admissibility of "propensity" evidence has almost invariably been in terms of the particular issue to which the evidence was relevant; for example, it has been variously admitted to show mens rea, to prove identity, to show that the accused's purpose was not innocent. The inadequacy of this sort of justification for admissibility is that it disregards the basic point that disposition evidence is objectionable not for what it proves but for the way in which it proves it. At other times similar fact evidence has been admitted on a different type of pretext, to show "system", but this is little more than a specific and consistently practised propensity. The exact basis of admissibility of this evidence remains far from clear (Evidence Reference Research Paper No. 11, Character and Conduct (1982), p. 47). The "principles" put forward as providing a basis upon which admission of similar fact (or "propensity") evidence can be admitted have been subjected to harsh criticism. Piragoff dissects the so-called criteria for admission or exclusion of similar fact evidence as stated by Lord Herschell in Makin v. Attorney-General (N.S.W.), which have been used in many cases to support the admission of such evidence. (See Similar Fact Evidence (1981).) Lord Herschell stated [28] : It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. As Piragoff says, read together, the criteria for excluding and admitting the evidence are contradictory. See also Waight and Williams, Cases and Materials on Evidence (1981), Ch. 9, pp. 392 and following.) If, despite the exclusionary rule contained in the first sentence, evidence of propensity can be admitted where it is relevant in accordance with the second sentence, the "relevancy" standard is so broad as to render the statement meaningless. 1. [1894] A.C., at p. 65.

[33]

In Mrs. Perry's case there is a very great temptation in weighing the evidence and more particularly in deciding admissibility, to ignore the presumption of innocence and to replace it with a presumption of guilt. The allegation that a number of the accused's relatives died or suffered from arsenic poisoning immediately conjures up a highly suspicious prejudicial atmosphere in which the presumption of innocence tends to be replaced with a presumption of guilt. The presumption of innocence and the strict standard of proof required in criminal cases tend to be indirectly and subtly undermined from the outset by reference to a sequence of events which according to common human experience would not occur unless the accused were guilty. By a backdoor this tends to reintroduce the standard rejected in Thomas v. The Queen [30] that guilt should be judged "in an ordinary common sense manner and in the way you would consider the more serious matters which come up for consideration and decision in your lives". It is very easy to assume that in common experience a person is hardly ever associated with poisonings of four close relatives, and that if such an association occurs it is so remarkable that it is unlikely to be innocent. Common assumptions about improbability of sequences are often wrong. A suggested sequence, series or pattern of events is often incorrectly regarded as so extremely improbable as to be incredible. However highly improbable, as well as merely improbable, sequences and combinations are constantly occurring. In random tossing the occurrence of a run of ten consecutive heads or tails is generally regarded as highly improbable. But this will occur on the average once in every 512 tosses, and the lesser sequences more frequently (2 runs of 9; 4 runs of 8; 8 runs of 7). If one randomly tosses a coin 257 times, more likely than not there will be a sequence of ten heads or tails. Although it is extremely improbable that any particular ticket will win a large lottery, it is certain that one will.

[64]

It is often difficult to decide whether a particular piece of evidence is or is not admissible within these principles. However when in doubt a judge should remember that the admission of similar fact evidence is the exception rather than the rule. To be admissible the evidence must have "a strong degree of probative force" (per Lord Wilberforce in Reg. v. Boardman [37] ), or "a really material bearing on the issues to be decided" (per Lord Morris of Borth-y-Gest [38] , citing Harris v. Director of Public Prosecutions [39] ); it may not be going too far to say that it will be admissible only if it is "so very relevant that to exclude it would be an affront to common sense" (see per Lord Cross in Reg. v. Boardman [40] ; and see per Lord Hailsham of St. Marylebone [41] ). The question is thus one of degree, and in answering it the judge must apply his experience and common sense. Although the judgment which the judge is required to make is to some extent discretionary, the rule of exclusion is a rule of law and not of discretion, and the principle allowing the admission of the evidence remains subject to the discretionary power to exclude it, even if legally admissible, where its prejudicial effect outweighs its probative value. In applying the test of admissibility to which I have just referred, practical assistance, in many cases, will be obtained by considering whether there is a "striking similarity" between the similar facts and the facts in issue (see Reg. v. Boardman [42] ). Recently, in the case of Reg. v. Chee [43] , the Full Court of the Supreme Court of Victoria had occasion to consider the test of admissibility in relation to similar fact evidence. After referring to Boardman and Markby, their Honours said [44] : As at present advised, we are of opinion that it is not a condition of the admissibility of similar fact evidence, either in general or in cases where the evidence is tendered in relation to a particular kind of issue or issues, that the evidence shall have, not merely probative force , but a high degree of probative force. It is difficult to see why, in principle, a stronger degree of probative force should be necessary for the reception of evidence of similar facts than for the reception of other circumstantial evidence. With great respect to their Honours, and notwithstanding the impressive list of earlier cases which are cited in support of their viewpoint, it seems to me that Boardman, coupled with the approval accorded to it by this Court in Markby, has determined the issue against them. Such evidence differs from other circumstantial evidence because, notwithstanding that it may have some relevance, its admission is the exception rather than the rule. The view has been expressed that the effect of Boardman is to interpret the classic statement of Lord Herschell in Makin not in terms of a rule of exclusion with certain categories wherein exceptions may be found, nor in terms of mere propensity or something more, but as requiring the court to compare, in the context of each case, the probative value of the evidence with the risk of prejudice it conveys. To be admissible, the evidence must have a sufficiently high degree of probative force to outweigh the inevitable prejudice flowing from the nature of the evidence. It is a question of degree in each case, since probative value will vary with the nature of the similar fact evidence itself, the issues, and the other evidence in the case. There is an impressive body of academic writing which takes this view of Boardman, including L. H. Hoffmann, Similar Facts after Boardman, Law Quarterly Review, vol. 91 (1975), p. 193; Ronald B. Sklar, Similar Fact Evidence - Catchwords and Cartwheels, McGill Law Journal, vol. 23 (1977), p. 60; C. R. Williams, The Problem of Similar Fact Evidence, Dalhousie Law Jo., vol. 5 (1979), p. 281; Waight and Williams, Cases and Materials on Evidence (1980), p. 392; Eggleston, Evidence, Proof and Probability (1978), p. 73, Cross on Evidence, 5th ed. (1979), pp. 375-378. In my opinion, there is much to be said for this reconciliation of the twin principles stated by Lord Herschell, although there is no reason to treat any particular formulation as exclusive. In some cases, the categorization of exceptions will continue to be helpful. 1. (1978) 140 C.L.R. 108, at pp. 116-117. 2. [1894] A.C. 57, at p. 65. 3. [1952] A.C. 694. 4. (1978) 140 C.L.R., at p. 117. 5. [1975] A.C., at p. 444. 6. [1975] A.C., at p. 439. 7. [1952] A.C., at p. 710. 8. [1975] A.C., at p. 456. 9. [1975] A.C., at pp. 452-453. 10. [1975] A.C., at pp. 439, 441, 442, 452, 454, 462. 11. [1980] V.R. 303. 12. [1980] V.R., at p. 308.

[73]

This brief reference to the evidence of Dr. Mantock cannot convey the full substance of his opinion, but it does provide the context to an understanding of the Crown's concession. In brief, the submission of the Crown is that the evidence relating to Duncan's illness is to be considered in the context of the evidence of the poisonings of the other three men, with particular reference to the similarity of the symptoms exhibited by Mr. Perry. So considered, the jury were entitled to conclude that Duncan's illness was due to the ingestion of lead and arsenic over the period. Let it be assumed that such a process of reasoning, based on admissible evidence, is permissible. There is a prior question, however, governing the admissibility of the disputed evidence. Is it capable of exerting sufficient probative force? That question can only be answered in the context of the issues in the case and the other evidence. There must be a real nexus between the similar fact evidence and the facts to be proved. Very often that nexus will lie, as Gibbs A.C.J. said in the passage I have quoted from Markby, in the existence of a striking similarity exhibited by the evidence in question with the facts to be proved. The nexus in poisoning cases may be somewhat more tenuous in its involvement of the person who is accused: Martin v. Osborne [45] . Nevertheless, there must be clear proof of a similar fact, namely, that Duncan suffered from arsenical poisoning. The Crown concedes that such a fact is not established by the evidence relating directly to him. The evidence of Dr. Mantock is equivocal. That concession, which is rightly made, is fatal to the submission in favour of admissibility. When all the other evidence is taken into account, the conclusion that Duncan suffered from arsenical poisoning is unsupported by cogent evidence. Certainly, there are some points of similarity with the symptoms exhibited by Mr. Perry and those symptoms were, in his case, clearly the result of such poisoning. However, the limited number of comparable symptoms, coupled with their mundane character, militate against a confident conclusion that Duncan must also have been suffering from slow poisoning. There could have been other causes for the symptoms he displayed. If his body had been interred instead of cremated, it may have been possible to have established by later examination of the remains that arsenic was present. If that were so, the probative force of the evidence of his illness, suffered at a time when he was being cared for by the applicant, would be very strong indeed. There could then have been no doubt of its admissibility. Without it, the evidence possesses a speculative character. Whether or not it has any relevance at all, it certainly lacks that degree of relevance which Boardman [46] and Markby require. It therefore should not have been admitted. That being the case, and notwithstanding the impeccably fair and accurate summing up of the learned trial judge, it was necessary for the Court to grant the application for special leave, allow the appeal and order a new trial.