Die
Veneris, 5° Aprilis, 1935
Parliamentary
Archives,
HL/PO/JU/4/3/918
Lord
Chancellor.
Lord
Hewart
(L.C.J.).
Lord
Atkin.
Lord
Tomlin.
Lord
Wright.
WOOLMINGTON
v.
DIRECTOR OF PUBLIC PROSECUTIONS
(on behalf of
His Majesty).
Lord Chancellor
MY LORDS,
The Appellant, Reginald
Woolmington, after a trial at the
Somerset Assizes at Taunton on
23rd January, at which, after an
absence of one hour and
twenty-five minutes, the jury disagreed,
was convicted at the
Bristol Assizes on the 14th February of the
wilful murder of his
wife on 10th December, 1934, and was sentenced
to death. He
appealed to the Court of Criminal Appeal, sub-
stantially upon the
ground that the learned Judge had misdirected
the jury by telling
them that in the circumstances of the case he
was presumed in law
to be guilty of the murder unless he could
satisfy the jury that
his wife's death was due to an accident.
The appeal came before the Court
of Criminal Appeal upon
the 18th March and was dismissed. The
Court said it may be
" that it would have been better "
had the learned Judge who tried
the case said to the jury that if
they entertained reasonable doubt
whether they could accept his
explanation they should either acquit
him altogether or convict
him of manslaughter only; but, relying
upon Section 4, subsection
1, of the Criminal Appeal Act, 1907,
which provides " that
the Court may, notwithstanding they are of
" opinion that
the point raised in the appeal might be decided in
" favour
of the Appellant, dismiss the appeal if they consider no
"
substantial miscarriage of justice has actually occurred ",
they
dismissed the appeal.
Thereupon the Attorney-General
gave his fiat certifying that
the appeal of Reginald Woolmington
involved a point of law of
exceptional public importance and that
in his opinion it was
desirable in the public interest that a
further appeal should be
brought. The matter now comes before your
Lordships' House.
The facts are as follows.
Reginald Woolmington is 211/2 years
old. His wife, who was killed,
was 171/2 years old last December.
They had known each other for
some time and upon the 25th
August they were married. Upon the
14th October, she gave birth
to a child. Shortly after that there
appears to have been some
quarrelling between them and she left
him upon the 22nd November
and went to live with her mother.
Woolmington apparently was
anxious to get her to come back, but
she did not come. The
prosecution proved that at about 9.15 in the
morning of the 10th
Mrs. Daisy Brine was hanging out her washing
at the back of her
house at 25, Newtown, Milborne Port. While she
was engaged in
that occupation, she heard voices from the next
door house, No. 24.
She knew that in that house her niece,
Reginald Woolmington's
wife, was living. She heard and could
recognize the voice of
Reginald Woolmington saying something to
the effect " are you
'going to come back home? She could not
hear the answer.
Then the back door in No. 24 was slammed. She
heard a voice in
the kitchen but could not tell what it said. Then
she heard the
sound of a gun. Upon that she looked out of the
front window
and she saw Reginald Woolmington whose voice she had
heard
just before speaking in the kitchen, go out and get upon
his
bicycle which had been left or was standing against the wall
of
her house, No. 25. She called out to him but lie gave no
reply.
He looked at her hard and then he rode away.
2 [2]
According to Reginald
Woolmington's own story, having
brooded over and deliberated upon
the position all through the
night of the 9th of December, he went
on the morning of the 10th
in the usual way to the milking at his
employer's farm and while
milking conceived this idea, that he
would take the old gun which
was in the barn and he would take it
up that morning to his wife's
mother's house where she was living
and that he would show her
that gun and tell her that he was going
to commit suicide if she
did not come back. He would take the gun
up for the purpose of
frightening her into coming- back to him by
causing her to think that
he was going to commit suicide. He
finished his milking, went back
to his father's house, had
breakfast and then left, taking with him
a hack saw. He returned
to the farm, went into the barn, got the
gun which had been used
for rook shooting, sawed off the barrels
of it, then took the only
two cartridges which were there and put
them into the gun. He took
the two pieces of the barrel which
he had sawn off and the hack
saw, crossed a field about 60 yards
wide and dropped them into the
brook. Having done that, he
returned on his bicycle with the gun
in his overcoat pocket, to his
father's house and changed his
clothes. Then he got a piece of
wire flex which he attached to the
gun so that he could suspend
it from his shoulder underneath his
coat and so went off to the
house where his wife was living. He
knocked at the door, went
into the kitchen and asked her "
Are you coming back? ' She
made no answer. She came into the
parlour and on his asking her
whether she would come back she
replied she was going into service.
He then, so he says,
threatened he would shoot himself and went
on to show her the gun
and brought it across his waist, when it
somehow went off and his
wife fell down and he went out of the
house. He told the jury that
it was an accident, that it was a
pure accident; that whilst he
was getting the gun from under his
shoulder and was drawing it
across his breast it accidentally went
off and he was dong nothing
unlawful, nothing wrong, and this
was a pure accident. There was
considerable controversy as to
whether a letter in which he set
out his grievances was written
before or after the above events.
But when he was arrested at
7.30 on the evening of the 10th and
charged with having committed
murder he said : " I want to
say nothing, except I done it, and they
" can do what they
like with me. It was jealousy I suppose. Her
" mother enticed
her away from me. I done all I could to get her
" back.
That's all."
The learned Judge in summing up
the case to the jury said :—
" If you accept his
evidence, you will have little doubt
" that she died in
consequence of a gunshot wound which was
" inflicted
by a gun which he had taken to this house, and
" which was
in his hands, or in his possession, at the time
" that it
exploded. If you come to the conclusion that she
" died in
consequence of injuries from the gun which he was
" carrying,
you are put by the law of this country into this
" position :
' The killing of a human being is homicide, how-
" ever he
may be killed, and all homicide is presumed to be
" malicious
and murder, unless the contrary appears from
" circumstances
of alleviation, excuse, or justification. In
" every
charge of murder, the fact of the killing being first
"
proved, all the circumstances of accident, necessity or
"
infirmity, are to be satisfactorily proved by the prisoner,
"
unless they arise out of the evidence produced against him;
"
for the law will presume that the attack would be founded
"
in malice unless the contrary be shown.' That has been
" the
law of this country for all time since we had law. Once
" it
is shown to a jury that somebody has died through the act
"
of another, that is presumed to be murder, unless the person
"
who has been guilty of the act which causes the death can
"
satisfy a jury that what happened was something less, some-
[3] 3
" thing which might be
alleviated, something which might be
" reduced to a charge of
manslaughter, or was something
" which was accidental, or was
something which could be
" justified."
At the end of
his summing up he added :—
" The Crown has got to
satisfy you that this woman,
" Violet Woolmington, died at
the prisoner's hands. They
" must satisfy you of that beyond
any reasonable doubt. If
" they satisfy you of that, then he
has to show that there are
" circumstances to be found in the
evidence which has been
" given from the witness box in this
case which alleviate the
" crime so that it is only
manslaughter or which excuse the
" homicide altogether by
showing that it was a pure accident."
In the argument before the Court
of Criminal Appeal cases
were cited by the learned Counsel on
either side and text-books of
authority were referred to, but the
learned Judges contented them-
selves with saying " There can
be no question to start with that the
" learned Judge laid
down the law applicable to a case of murder
" in the way in
which it is to be found in the old authorities."
They
repeated the learned Judge's words and said 'No doubt
" there
is ample authority for that statement of the law." They
then
relied, as I have already mentioned, upon the proviso
to Section 4
of the Criminal Appeal Act, 1907, and dismissed the
appeal.
It is true as
stated by the Court of Appeal that there is
apparent
authority for the law as laid down by the learned Judge.
But
your Lordships' House has had the advantage of a prolonged
and
exhaustive enquiry dealing with the matter in debate from
the
earliest
times, an advantage which was not shared by either of the
Courts
below. Indeed your Lordships were referred to
legal
propositions
dating as far back as the reign of King Canute
(994-1035).
But I do not think it is necessary for the purpose of
this
opinion to go as far back as that. Rather would I invite
your
Lordships
to begin by considering the proposition of law which is
contained
in Foster's Crown Law, written in 1762, and which
appears
to be the foundation for the law as laid down
by
the
learned Judge in this case. It must be remembered that
Sir
Michael
Foster, although a distinguished Judge, is for this purpose
to
be regarded as a text-book writer, for he did not lay down
the
doctrine
in any case before him, but in an article which is described
as
" The Introduction to the discourse of Homicide." In the
folio
edition,
published at Oxford at the Clarendon Press in 1762, at
p.
255, he states :— ' In every charge of murder, the fact of
killing
" being
first proved, all the circumstances of accident, necessity or
" infirmity, are to be satisfactorily proved by the prisoner
unless
" they arise out of the evidence produced against him. For
the
"law
presumeth the fact to have been founded in malice until the
"contrary appeareth, and very right it is that the law should
so
"presume. The defendant in this instance standeth upon just
the
"same foot that every defendant doth. The matters tending
to
"justify,
excuse or alleviate must appear in evidence before he
" can avail himself of them."
Now the first part of this
passage appears in nearly every text-
book or abridgment which has
been since written. To come down
to modern times, the passage
appears in Stephen's Digest of the
Criminal Law, 7th Edition, at
p. 235; also in the well-known
treatise of Archbold, "
Criminal Pleading, Evidence and
" Practice," which is
the companion of lawyers who practise in the
criminal courts. See
29th Edition, 1934, at p. 873. It also
appears almost textually in
Russell on Crimes, 8th Edition (1923),
Vol. 1, p. 615, and in the
second Edition of Halsbury's Laws of
4 [4]
England, Vol. 9, which purports
to state the law as on 1st May,
1933, where it is said at p. 426
:—
" When it has been proved
that one person's death has been
" caused by another, there
is a prima facie presumption of law
" that the person causing
the death is a murderer unless the
'' contrary appears from the
evidence either for the prosecution or
" for the defence. The
onus is upon such person, when accused,
" to show that his
act did not amount to murder." The authority
for that
proposition is given as Foster, p. 255, and also the case of
R.
v. Greenacre, 1837, 8 C. & P. 35. The question
arises is that
statement correct law? Is it correct to say, and
does Sir Michael
Foster mean to lay down, that there may arise in
the course of a
criminal trial a situation at which it is
incumbent upon the accused
to prove his innocence ? To begin with,
if that is what Sir Michael
Foster meant, there is no previous
authority for his proposition,
and I am confirmed in this opinion
by the fact that in all the text-
books no earlier authority is
cited for it. Before, however, one
considers the earlier criminal
law several facts have to be
remembered.
First, it was not till 1907 that
the Court of Criminal Appeal
was set up. It is perfectly true that
from time to time there have
been famous occasions on which the
Judges and Barons were called
together to give their opinion upon
the law bearing on murder.
Examples of this will be found; in the
year 1611, in the case of
Mackallay, (9 Co. Rep. 65b) all
the Judges and Barons were moved
to give their opinion; in 1706,
in the case of R. v. Mawgridge,
(17 St. Tr. 57) 2nd
Ed. of Kelynge's Reports, 1789, which case
was argued before all
the Judges and all of them except Lord
Chief Justice Trevor were
of opinion that Mawgridge was guilty
of murder; and in 1843 in the
case of R. v. Macnaughton,
(4 St. Tr. N.S. 847)
where all the Judges gave answers to your
Lordships' House upon
the test of insanity.
Macnaughton's case stands by
itself. It is the famous pro-
nouncement on the law bearing on the
question of insanity in cases
of murder. It is quite exceptional
and has nothing to do with
the present circumstances. In
Macnaughton's case the onus is
definitely and exceptionally placed
upon the accused to establish
such a defence. See R. v.
Oliver Smith (1910) 6 C.A.R. p. 19, where
it is stated that
the only general rule that can be laid down as
to the evidence in
such a case was that insanity, if relied upon as
a defence, must
be established by the Defendant. But it was
added that all the
Judges had met and resolved that it was not
proper for the Crown
to call evidence of insanity, but that any
evidence in the
possession of the Crown should be placed at the
disposal of
the prisoner's counsel to be used by him if he thought
fit. See
also Archbold, 29th Edition, pages 18 and 874. It is not
necessary
to refer to Macnaughton's case again in this judgment
for it has
nothing to do with it.
It is true, that at a later
period, certain cases were reserved by
the Judges for the
consideration of the Court of Crown Cases
Reserved, but many of
the propositions with regard to criminal
law are contained either
in the summing up of the Judges or in
text-books of authority as
distinguished from a Court sitting in
banc.
The learned
author of Stephen's Digest of the Criminal Law,
7th
Edition (1926) has an interesting note on the definition of
murder
and manslaughter at page 461. But his remarks are rather
directed
to the ingredients of the crime than to the proof of it.
None
the less, the author does not hesitate to tread a path of very
robust
criticism of the previous authorities. He speaks of the
"
intricacy, confusion and uncertainty of this branch of the law
".
He
refers to the definition of Coke (1552-1623) and says " these
'
passages, overloaded as Coke's manner is with a quantity of loose,
'
rambling gossip, form the essence of his account of murder ".
[5] 5
He describes Coke's chapter on
manslaughter as " bewildering "
and adds that Hale
(1609-1676) treats manslaughter in a manner
so meagre and yet so
confused that no opinion of it can be
obtained except by reading
through chapters 38 to 40 and trying
to make sense of them, and
concludes by saying, p. 466, that Sir
" Michael Foster to
some extent mitigates the barbarous rule laid
" down by Coke
as to intentional personal. violence ".
Next it must be remembered that
prisoners were not entitled
to be represented by counsel, except
in cases of felony where counsel
might argue the law on their
behalf.
Thirdly it must not be forgotten
that the prisoner himself was
not allowed to give evidence before
the Act passed in 1898.
Bearing these considerations in
mind, I now turn to some of
the cases cited to us. I doubt whether
in any of the early ones
the question of the burden of proof was
considered. Rather they
were concerned with the ingredients of the
crime of murder. One
of the first difficulties was to settle the
meaning of express and
implied malice. It was not till 1826 that
Mr. Justice Bayley, in
Bromage v. Prosser (4 B. and
C. 247) gave his famous definition
of malice as meaning a wrongful
act, done intentionally without
just cause or excuse. The older
cases were rather concerned to give
examples of what might be
malice. This was so in Mackallay's
case (ubi supra). The
prisoner was there accused of murdering
a serjeant of London. The
Courts were already considering cases
of express or implied malice
and the passage in Coke appears
simply to mean that if a man does
acts calculated to kill and
actually does kill that is evidence of
malice or intent; in other
words, evidence of one of the
ingredients of murder, but it does
not seem to be at all concerned
with onus of proof or to support
the statement of Sir Michael
Foster on that point.
One of the most famous of the
earlier treatises on criminal law
was the " History of the
Pleas of the Crown " by Sir Matthew
Hale. That celebrated
Judge died on Christmas Day, 1675. It
was known that he had left a
treatise on the subject and upon the
29th November, 1680, it was
ordered by the House of Commons that
the executors of Sir Matthew
Hale be desired to print the manu-
script relating to Crown Law
and a Committee be appointed to
take care of the printing thereof.
It is not said that anything
appears in Hale suggesting that the
burden of proving his innocence
lay on the prisoner. Looking at
the edition of 1800, chapter 37,
Vol. 1, p. 454, is again
concerned with what malice is. It is headed
' Concerning murder by
malice implied, presumptive or malice in
' Law," and
Mackallay's case is duly cited.
As appears from Foster's "
Pleas of the Crown," Sir Michael
Foster was familiar with
Hale's treatise (see his preface), and
although in the course of
his book he makes reference to Hale, he
gives no authority for the
proposition which is under discussion.
It cannot be doubted that
at that time in English Courts of justice
the law of evidence was
in a very fluid condition. Indeed in some
civil cases it differed
on different circuits. See Weeks v. Sparke
(1813) 1
M. & S. 679 and also the note 20, p. 182 in
Stephen's
Digest of the Law of Evidence, 10th Edition, 1922. It
was only
later that the Courts began to discuss such things as
presumption
and onus. In Wigmore on Evidence, Vol. 4, section
2513, note
page 3562, a reference is made to the judgment of Mr.
Justice
Weaver in the case of the State v. Brady (1a. 91
N.W. 801).
This was cited in the case of R. v. Stoddart
(1909) 2 C.A.R.
p. 233 :-
"The
use of the terms ' presumption of guilt ' and
"
prima facie evidence of guilt ' with reference to the
"
possession of stolen goods has perhaps been too lone indulged
" in by Courts and text-writers to be condemned; but we
" cannot resist the conclusion that, when so employed, these
" expressions are unfortunate, and often misleading . .
.
6 [6]
" ' Presumptions ' of guilt
and ' prima facie ' cases of guilt
" in the trial of a party
charged with crime, mean no more
"than that from the proof of
certain facts the jury will be
" warranted in convicting the
accused of the offence with
" which he is charged."
We were referred to the case of
R. v. Legg (Kelynge's Reports,
p. 27) where it is
said, that " at the Newgate Session, in 1674 one
John Legg
being indicted for the murder of Mr. Robert Wise,
" it was
upon the evidence agreed that if one man kill another and
"
no sudden quarrel appeareth, this is murder." Mackallay's
case
is quoted as an authority and the report goes on, " and it
"
lieth upon the party indicted to prove the sudden quarrel."
With
regard to Kelynge's Reports, the critics have greatly differed.
Sir
John Kelynge was Chief Justice of the King's Bench. He
died in
1671 and whatever opinion may be held about him as a
Judge, upon
which see Foss " The Judges of England ' (1870)
p. 381, the
critics have differed greatly upon the value of his
Reports. Lord
Campbell in his Life of Kelynge, " Lives of the
Chief
Justices " (1849) Vol. I, p. 511, says " He compiled a
folio
" volume of decisions in criminal cases which are of
no value
" whatever." But, on the other hand there are
others who
regard the book as of high authority, see " The
Reporters " by
Wallace, Boston, 1882, p. 327.
The report of Legg's case is
meagre and unsatisfactory and
cannot, I think, be held to mean
that unless the prisoner prove the
sudden quarrel, he must be
convicted of murder. The word
" onus ' is used indifferently
throughout the books, sometimes
meaning the next move or next step
in the process of proving or
sometimes the conclusion of the whole
matter.
Mawgridge's case, already
referred to, was cited to us from
Kelynge's Reports, but it was
not reported by Kelynge for the
simple reason that it was not
tried till 1706. Campbell (ubi
supra), Vol. II, p. 176,
says it was reported by Holt and makes
caustic comments on Holt's
English composition. It was added by
Holt to his Edition of
Kelynge s Reports and is described as a case
of "great
expectation " and gives the history of murder trials in
English
Courts from the earliest times. The case, however, is no
authority
for saying that the prisoner at any time is called upon
to prove
his innocence; quite the contrary. It is another of those
cases
which deal with malice and with what is such provocation as
will
make the act of killing to be manslaughter only.
In Hawkins'
"Pleas of the Crown," the 8th Edition, 1824,
Vol.
I, p. 88, section 25, it is stated, " It is also agreed that no
one
'
can excuse the killing another by setting forth in a special
'
pleading that he did 16 by misadventure or se defendendo, but
'
that he must plead ' not guilty ' and give the special matter in
'
evidence." This points to the fact that the verdict must
be
given
not on any special pleading given by the prisoner but upon
and
as the result of the whole of the case, and it nowhere suggests
that
the burden of proof either at the beginning or at the end of a
case
is not on the prosecution.
The case of
R. v. Greenacre (1837) (ubi supra), was
certainly
heard
by a very distinguished Judge, Chief Justice Tindale. But
it
is to be observed that the dictum relied upon by the prosecution
in
this case, namely, "that where it appears that one person's
"
death has been occasioned by the hand or another it behoves that
"
other to show from evidence" or by inference from the facts of
the
"
case that the offence is of a mitigated character and does not
"
amount to the crime of murder," was contained in the summing
up
of the learned Judge to the jury. It is the passage in
Sir
Michael
Foster and this summingup which are usually relied on as
the
authority for the proposition that at some particular time of
a
criminal
case the burden of proof lies on the prisoner to prove his
innocence.
The presumption of innocence in a criminal case is
[7] 7
strong, see Taylor " On
Evidence," 11th Edition (1920), Vol. I,
paragraphs 113 and
114, and it is doubtful whether either of these
passages means any
such thing. Rather do I think they simply
refer to stages in the
trial of a case. All that is meant is that if
it is proved that
the conscious act of the prisoner killed a man and
nothing else
appears in the case, there is evidence upon which the
jury may,
not must, find him guilty of murder. It is difficult to
conceive
so bare and meagre a case, but that does not mean that the
onus is
not still on the prosecution.
If at any period of a trial it
was permissible for the Judge to
rule that the prosecution had
established its case and that the
onus was shifted on the prisoner
to prove that he was not guilty
and that unless he discharged that
onus the prosecution was
entitled to succeed, it would be enabling
the Judge in such a case
to say that the jury must in law find the
prisoner guilty and so
make the Judge decide the case and not the
jury, which is not the
common law. It would be an entirely
different case from those
exceptional instances of special
verdicts where a Judge asks the
jury to find certain facts and
directs them that on such facts the
prosecution is entitled to
succeed. Indeed, a consideration of such
special verdicts shows
that it is not till the end of the evidence that
a verdict can
properly be found and that at the end of the evidence
it is not
for the prisoner to establish his innocence, but for the
prosecution
to establish his guilt. Just as there is evidence on
behalf of the
prosecution so there may be evidence on behalf of
the prisoner
which may cause a doubt as to his guilt. In
either case, he is
entitled to the benefit of the doubt. But while
the prosecution
must prove the guilt of the prisoner, there is no
such burden laid
on the prisoner to prove his innocence and it is
sufficient for
him to raise a doubt as to his guilt; he is not bound to
satisfy
the jury of his innocence.
This is the real result of the
perplexing case of R. v. Abramovitch
(11 C.A.R. 45) which
lays down the same proposition, although
perhaps in somewhat
involved language. Juries are always told
that if conviction there
is to be the prosecution must prove the
case beyond reasonable
doubt. This statement cannot mean that
in order to be acquitted
the prisoner must " satisfy " the jury. This
is the law
as laid down in the Court of Criminal Appeal in R. v.
Davies
(8 C.A.R. 211) the head-note of which correctly states that
where
intent is an ingredient of a crime there is no onus on the
Defendant
to prove that the act alleged was accidental. Through-
out the web
of the English Criminal Law one golden thread is
always to be seen
that it is the duty of the prosecution to prove
the prisoner's
guilt subject to what I have already said as to the
defence of
insanity and subject also to any statutory ex-
ception. If, at the
end of and on the whole of the case,
there is a reasonable doubt,
created by the evidence given by
either the prosecution or the
prisoner, as to whether the prisoner
killed the deceased with a
malicious intention, the prosecution has
not made out the case and
the prisoner is entitled to an acquittal.
No matter what the
charge or where the trial, the principle that
the prosecution must
prove the guilt of the prisoner is part of the
common law of
England and no attempt to whittle it down can be
entertained. When
dealing with a murder case the Crown must
prove (a) death
as the result of a voluntary act of the accused and
(b) malice
of the accused. It may prove malice either expressly
or by
implication. For malice may be implied where death occurs
as the
result of a voluntary act of the accused which is (i) intentional
and
(ii) unprovoked. When evidence of death and malice has been
given
(this is a question for the jury) the accused is entitled to
show
by evidence or by examination of the circumstances adduced
by the
Crown that the act on his part which caused death was
either
unintentional or provoked. If the jury are either satisfied
with
his explanation or, upon a review of all the evidence, are
8 [8]
left in reasonable doubt
whether, even if his explanation be not
accepted, the act was
unintentional or provoked, the prisoner is
entitled to be
acquitted. It is not the law of England to say, as was
said in the
summing up in the present case, " if the Crown satisfy
"
you that this woman died at the prisoner's hands then he has to
"
show that there are circumstances to be found in the evidence
"
which has been given from the witness box in this case which
"
alleviate the crime so that it is only manslaughter or which excuse
" the homicide altogether by showing it was a pure accident
".
If the proposition laid down by Sir Michael Foster or in
the
summing up in R. v. Greenacre, means this, those
authorities are
wrong.
We were then asked to follow the
Court of Criminal Appeal
and to apply the proviso of Section 4 of
the Criminal Appeal Act,
1907, which says: " the Court may,
notwithstanding that they are
" of opinion that the point
raised in the appeal might be decided
" in favour of the
Appellant, dismiss the appeal if they consider
" no
substantial miscarriage of justice has actually occurred ".
There
is no doubt that there is ample jurisdiction to apply that
proviso
in a case of murder. The Act makes no distinction between
a
capital case and any other case, but we think it impossible to
apply
it in the present case. We cannot say that if the jury had
been
properly directed they would have inevitably come to the
same
conclusion.
In the result we decline to
apply the proviso and, as already
stated, we order that the appeal
should be allowed and the
conviction quashed.