*462 Woolmington Woolmington Appellant; v The Director Di rector of Public Prosecutions Respondent http://web2.westlaw.com/blob/broker.aspx?imcxt=LAW http://web2.westlaw.com/blob/broker. aspx?imcxt=LAW-RPTS&im!i"=#2$A%'(%)))))((*+%,+$(+(+&rs=WL RPTS&im!i"=#2$A%'(%)) )))((*+%,+$(+(+&rs=WLW)) W)).%&im0rmt=applicat .%&im0rmt=applicat io1 20p"0&s1=3+))3A3'*(2AA%A2,+$*3,'+&!ti"=)&01=4top&rlt=L#(45RLT ,)3,66)')2)%*&1=)&7r=2.%&rlti=)&s7=Split&mt=Westlaw89%*&imr1=#LR&pbc=62(, A$) http://web2.westlaw.com/blob/broker.aspx?imcxt=LAWRPTS&im!i"=#2$A%'(%)))))((*+%,+$(+(+&rs=WL RPTS&im!i"=#2$A%'(%)) )))((*+%,+$(+(+&rs=WLW)) W)).%&im0rmt=applicat .%&im0rmt=applicat io1 20p"0&s1=3+))3A3'*(2AA%A2,+$*3,'+&!ti"=)&01=4top&rlt=L#(45RLT ,)3,66)')2)%*&1=)&7r=2.%&rlti=)&s7=Split&mt=Westlaw89%*&imr1=#LR&pbc=62(, A$) #mae ) i1 P( 0ormat. A7ailable A7ailable 0or ;00li1e Pri1t
)*,6
!"#$%& A' 462 isco!1t isco!1t Sa1ke> L.. @ Lor" 2,. rimi1al LawB!r"erB;1!s o0 Proo0BAcci"e1tB81law0!l #1te1tio1B(irectio1 to the C!r> BReaso1able (o!bt o0 D!iltB rimi1al Appeal Act@ Act@ )*% E "w. @ c. 2,F@ s. ' . #1 a trial 0or m!r"er the row1 m!st pro7e "ea th as the res!lt o0 a 7ol!1tar> act o0 the priso1er a1" malice o0 the priso1er. Whe1 e7i"e1ce o0 "eath a1" malice has bee1 i7e1@ the priso1er is e1title" to show b> e7i"e1ce or b> exami1atio1 o0 the circ!msta1ces a""!ce" b> the row1 that the act o1 his part which ca!se" "eath was either !1i1te1tio1al or pro7oke". #0 the G!r> are either satis0ie" with his expla1atio1 or@ !po1 a re7iew o0 all the e7i"e1ce@ are le0t i1 reaso1able "o!bt whether@ e7e1 i0 his expla1atio1 be 1ot accepte"@ the act was !1i1te1tio1al or pro7oke"@ the priso1er is e1title" to be acH!itte". Stateme1t o0 the Law i1 osterIs row1 Law E)+2F@ p. 266@ a1" s!mmi1 !p o0 Ti1"al .C. i1 Rex 7. Dree1acre E)3,F 3 . & P. ,6 "isappro7e". ;r"er o0 the o!rt o! rt o0 rimi1al Appeal re7erse". APPAL 0rom a1 or"er o0 the o!rt o0 rimi1al Appeal re0!si1 lea7e to Rei1al" Woolmi1to1@ Woolmi1to1@ the appella1t@ to appeal aai1st his co17ictio1 o0 the wil0!l m!r"er o0 iolet 9athlee1 Woolmi1to1@ Woolmi1to1@ who was his wi0e.
The appella1t was co17icte" o1 ebr!ar> )'@ )*,6@ at $ristol AssiJes be0ore Swi0t C. a1" a G!r>. The appella1t a1" his wi0e were marrie" o1 A!!st 26@ )*,'. -o1e a1" a hal0 >ears@ a1 " his wi0e was 0o!r >ears >o!1er. The> li7e" at astleto1@ 1ear Sherbor1e@ o1 the 0arm o0 o1e heesema1@ the appella1tIs emplo>er. ;1 Ko7ember 22@ )*,'@ the appella1tIs wi0e le0t him a1" we1t to li7e with her mother@ Lilia1 Smith@ a wi"ow@ at 2' Kewtow1@ ilbor1e Port. The appella1t wa1te" her to o back to him a1" ma"e e00orts to i1"!ce her to o back@ b!t she wo!l" 1ot. '+, Kext "oor to rs. Smith li7e" a rs. $ri1e@ a sister o0 rs. Smith a1" a!1t o0 the "ecease" woma1. ;1 the mor1i1 o0 (ecember )%@ )*,'@ rs. $ri1e@ who was i1 the back >ar" o0 Ko. 26@ hear" the appella1tIs 7oice sa>i1: MAre >o! comi1 back or 1ot?M a1" MWhereIs >o!r mother?M The1 she hear" the back "oor o0 Ko. 2' slam@ a1" the1 the report o0 a !1. She looke" o!t o0 her 0ro1t wi1"ow@ a1" saw the appella1t. She calle" to him he ma"e 1o repl>@ b!t mo!1te" his bic>cle a1" ro"e awa>. She we1t i1to Ko. 2'@ a1" 0o!1" her 1iece l>i1 o1 the mat. She ha" bee1 shot thro!h the heart. The appella1t a7e e7i"e1ce to the 0ollowi1 e00ect: A0ter a sleepless 1iht o1 (ecember *-)% he tho!ht he miht 0rihte1 his wi0e i1to obe"ie1ce b> threate1i1 to shoot himsel0. ;1 (ecember )% he we1t to the 0arm till 3.2% A.. came home to ha7e his break0ast the1 we1t back to the 0arm@ a1" took a !1 belo1i1 to r. heesema1@ which la> o1 a shel0 i1 a bar1. Kear the !1 was a box co1tai1i1 two cartri"es. With a 0ret-saw belo1i1 to his 0ather he sawe" o00 part o0 the barrels a1" threw that part a1" the saw i1to a brook@ a1" loa"e" the !1 with the two cartri"es. The1 he p!t the !1 !1"er his o7ercoat i1 a pocket !se" 0or carr>i1 rabbits@ a1" ret!r1e" home. There he attache" to the !1 some 0lex 0or carr>i1 electric c!rre1t@ a 1" with this he s!spe1"e" the !1 0rom his riht sho!l"er a1" !1"er his o7ercoat a1" so eH!ippe" he ro"e o1 his bic>cle to rs. $ri1eIs ho!se. There he tappe" at the 0ro1t "oor his wi0e ope1e" it she was washi1 clothes i1 the kitche1. The> we1t i1to the back room. o! comi1 back or 1ot@ i?M b!t ot 1o a1swer. we1t i1to the 0ro1t room. more@ as # ha7e shot m> wi0e.M A 1ote was 0o!1" i1 the pocket o0 the appella1tIs coa t. #t was i1 these terms:MDoo" b>e all. M#t is ao1ies to carr> o1 a1> lo1er. # ha7e kept tr!e hopi1 she wo!l" ret!r1 this is the o1l> wa> o!t. The> r!i1e" me a1" #Ill ha7e m> re7e1e. a> Do" 0ori7e me 0or "oi1 this b!t it is the $est thi1. Ask Cess to call 0or the mo1e> pai" o1 motor bike EWe".F. 2 o1e 0or her a1" o1e 0or me. # am o0 a so!1" mi1" 1ow. ori7e me 0or all tro!ble ca!se" MDoo" b>e ALL
# lo7e iolet with all m> heart Re.M The appella1t was cross-exami1e" abo!t the "a te whe1 this 1ote was writte1@ whether it was be0ore or a0ter the "eath o0 his wi0e. 1othi1@ except # "o1e it@ a1" the> ca1 "o what the> like. #t was Gealo!s> # s!ppose. 0rom me. # "o1e all # co!l" to et her back@ thatIs all.M The appella1t was 0irst trie" at Ta!1to1 o1 Ca1!ar> 2,@ )*,6@ be0ore i1la> C. a1" a G!r>. A0ter co1si"eri1 their 7er"ict 0or a1 ho!r a1" twe1t>-0i7e mi1!tes that G!r> "isaree". At the trial o!t o0 which the prese1t appeal arises Swi0t C. i1 his s!mmi1-!p a7e the 0ollowi1 "irectio1 to the '+6 G!r>: MA chare is ma"e aai1st Rei1al" Woolmi1to1@ the priso1er at the bar@ o0 wil0!l m!r"er. #t is sai" that o1 the mor1i1 o0 (ecember )%@ abo!t hal0-past 1i1e@ he m!r"ere" his wi0e. That she "ie" whilst he was i1 that ho!se >o! will@ # sho!l" thi1k@ ha7e little "o!bt. #t is a matter e1tirel> 0or >o!. #0 >o! accept his e7i"e1ce@ >o! will ha7e little "o!bt that she "ie" i1 co1seH!e1ce o0 a !1-shot wo!1" which was i10licte" b> a !1 which he ha" take1 to this ho!se@ a1" which was i1 his ha1"s@ or i1 his possessio1@ at the time that it exp lo"e". #0 >o! come to the co1cl!sio1 that she "ie" i1 co1seH!e1ce o0 i1G!ries 0rom the !1 which he was carr>i1@ >o! are p!t b> the law o0 this co!1tr> i1to this positio1: The killi1 o0 a h !ma1 bei1 is homici"e@ howe7er he ma> be kille"@ a1" all homici"e is pres!me" to be malicio!s a1" m!r"er@ !1less the co1trar> appears 0rom circ!msta1ces o0 alle7iatio1@ exc!se@ o r G!sti0icatio1. I#1 e7er> chare o0 m!r"er@ the 0act o0 killi1 bei1 0irst pro7e"@ all the circ!msta1ces o0 acci"e1t@ 1ecessit>@ or i10irmit> are to be satis0actoril> pro7e" b> the priso1er@ !1less the> arise o!t o0 the e7i"e1ce pro"!ce" aai1st him 0or the law pres!meth the 0act to ha7e bee1 0o!1"e" i1 malice@ !1less the co1trar> appeareth.I ) That has bee1 the law o0 this co!1tr> 0or all time si1ce we ha" law. ;1ce it is show1 to a G!r> that somebo"> has "ie" thro!h the act o0 a1other@ that is pres!me" to be m!r"er@ !1less the perso1 who has bee1 !ilt> o0 the act which ca!ses the "eath ca1 satis0> a G!r> that what happe1e" was somethi1 less@ somethi1 which miht be alle7iate"@ somethi1 which miht be re"!ce" to a chare o0 ma1sla!hter@ or was somethi1 which was acci"e1tal@ or was somethi1 which co!l" be G!sti0ie".M The1@ a0ter re7iewi1 a1" comme1ti1 !po1 the e7i"e1ce@ the lear1e" G!"e a""e" these wor"s: MThe row1 has ot to satis0> >o! that this woma1@ iolet Woolmi1to1@ "ie" at the priso1erIs ha1"s. The> m!st satis0> >o! o0 that be>o1" a1 > reaso1able "o!bt. #0 the> satis0> >o! o0 that@ the1 he has to show that there are circ!msta1ces to be 0o!1" i1 the e7i"e1ce which has bee1 i7e1 0rom the wit1ess-box i1 this '++ case@ which alle7iate the crime so that it is o1l> ma1sla!hter@ or which exc!se the homici"e altoether b> showi1 that it was a p!re acci"e1t.M The G!r>@ a0ter co1si"eri1 their 7er"ict 0or a1 ho!r a1" 1i1e mi1!tes@ 0o!1" the appella1t !ilt> o0 wil0!l m!r"er. The appella1t applie" to the o!rt o0 rimi1al Appeal 0or lea7e to appeal aai1st his co17ictio1@ b!t that o!rt@ as state" abo7e@ re0!se" the applicatio1.
The Attor1e>-De1eral ha7i1 certi0ie" that the "ec isio1 o0 the o!rt o0 rimi1al Appeal i17ol7e" a poi1t o0 law o0 exceptio1al p!blic importa1ce a1" that@ i1 his opi1io1@ it was "esirable i1 the p!blic i1terest that a 0!rther appeal sho!l" be bro!ht@ the prese1t appeal was bro!ht be0ore this C. sai": MThe poi1t@ a1" reall> the o1l> poi1t@ o0 complai1t as rear"s this s!mmi1-!p is that the lear1e" G!"e " i" 1ot a1>where !se the expressio1 that the G!r> sho!l" acH!it the acc!se" altoether@ or co17ict him o1l> o0 ma1sla!hter@ i0 the> e1tertai1e" a1> reaso1able "o!bt abo!t the tr!th o0 his expla1atio1 o0 how his wi0e came b> her "eath. #t ma> be that it wo!l" ha7e bee1 better i0 the lear1e" G!"e ha" i1 those 0ew wor"s sai" to the G!r> that i0 the> e1tertai1e" reaso1able "o!bt whether the> co!l" accept his expla1atio1@ the> sho!l" either acH!it him altoether or co17ict him o0 ma1sla!hter o1l>.M This is precisel> the exceptio1 which the ap pella1t takes to the s!mmi1-!p o0 Swi0t C. a1" the complai1t which he makes aai1st the or"er o0 the o!rt o0 rimi1al Appeal is that the lear1e" G!"es "i" 1ot take a more serio!s 7iew o0 the omissio1 o0 the trial G!"e to make it H!ite clear that the o1!s still la> !po1 the prosec!tio1. #0 at the e1" o0 a trial 0or m!r"er a reaso1able "o!bt remai1s i1 the mi1"s o0 the G!r> whether the crime has bee1 committe"@ it is their "!t> to acH!it. ha7e bee1 rear"e" i1 0ormer >ears@ at the prese1t time the rimi1al Law rests o1 the 0o!1"atio1 that@ apart 0rom stat!tor> '+ e1actme1t to the co1trar>@ the prosec!tio1 m!st pro7e the !ilt o0 the priso1er otherwise he m!st be acH!itte". arlier a!thorities@ s!ch as Sir ichael oster i1 the #1tro"!ctio1 to the (isco!rse o0 Is case , Rex 7. Le ' Rex 7. ;1eb> 6 ast@ Pleas o0 the row1 + Rex 7. Dree1acre a1" $lacksto1e@ omme1taries 3 @ are co1cer1e" primaril> with the "e0i1itio1 o0 homici"e a1" malice. Sir ichael osterIs "escriptio1 o0 m!r"er is repeate" i1 Archbol"Is rimi1al Plea"i1 a1" 7i"e1ce * a1" R!ssell o1 rimes. )% The proper "irectio1 to the G!r> is thai which was i7e1 b> i1la> C. at the 0ormer trial. That lear1e" G!"e sai": MThe case 0or the prosec!tio1 is "eliberate shooti1. The "e0e1ce is@ Kot D!ilt> o0 m!r"er. The>M Ethe prosec!tio1F Mpro7e the killi1@ a1" i1 the abse1ce o0 expla1atio1 that is m!r"er. The "e0e1ce sa> Ixc!sable@ beca!se acci"e1tal.I o1si"er whether >o! e1tertai1 the slihtest "o!bt that this was a "eliberate killi1. #0 >o! ha7e 1o "o!bt@ it is >o!r "!t> to co17ict. .... #0 the res!lt o0 a "ispassio1ate s!r7e> is to lea7e a reaso1able "o!bt i1 >o!r mi1"s@ the1 >o!r "!t> as well as >o!r pleas!re is to acH!it.M #t is 0or the prosec!tio1 to satis0> the G!r> o1 all the e7i"e1ce that the priso1er is 1ot a1 i11oce1t ma1@ b!t a !ilt> ma1. The> m!st take the whole o0 the e7i"e1ce i1to co1si"eratio1 a1" the1 it is 1ot 0or the priso1er to sa>: M> expla1atio1 is s!ch that it m!st satis0> >o!.M #t is e1o!h 0or him i0 he sa>s: MThis is m> expla1atio1@M a1" i0 the G!r> o1 co1si"eri1 it are le0t i1 a reaso1able "o!bt. The1 it is their "!t> to acH!it the priso1er. MWhere@ a prima 0acie case ha7i1 bee1 ma"e aai1st him@ the "e0e1"a1t o00ers a1 expla1atio1@ the G!r> m!st be "irecte" that the o1!s o0 proo0 o0 !ilt is still o1 the prosec!tio1@ a1" that@ i0 o1 the whole e7i"e1ce the> are i1 "o!bt@ the> sho!l" acH!itM: Roscoe@ rimi1al 7i"e1ce. )) This is the res!lt '+3 o0 1!mero!s "ecisio1s: Rex 7. Sto""art )2 Rex 7. (a7ies ), Rex 7. Abramo7itch )' Rex 7. A!bre> )6 Rex 7. Dri1ber )+ Rex 7. Sa1"ers ) Lawre1ce 7. The 9i1. )3 NThe 0ollowi1 cases were also re0erre" to: Rex 7. St!ress )* Rex 7. (a7ies 2% Rex 7. h!ma1 creat!re is homici"e: $lacksto1e@ omme1taries. 2, elo1io!s homici"e is the killi1 o0 a h!ma1
creat!re witho!t G!sti0icatio1 or exc!se. 2' a1sla!hter is the !1law0!l killi1 o0 a1other witho!t malice either express or implie". 26 MWhe1 a ma1 o0 so!1" memor>@ a1" o0 the ae o0 "iscretio1@ !1law0!ll> killeth .... a1> reaso1able creat!re i1 rer!m 1at!ra !1"er the ki1Is peace@ with malice 0oretho!ht@ either expresse" b> the part>@ or implie" b> lawM 2+ this is m!r"er. The1 comes the H!estio1 o0 pro7i1 the commissio1 o0 the crime. The row1 m!st pro7e that the priso1er kille" the ma1. The priso1er k1ows how he "i" it 0ormerl> he co!l" 1ot i7e e7i"e1ce@ b!t he still k1ew. The "ea" ma1 k1ew@ b!t ca11ot sa>. #1 the abse1ce o0 e7i"e1ce o0 others@ the o!rt m!st 1ee"s resort to i10ere1ce. #t co1si"ers how the "eath wo!1" was i10licte" b> a !1@ or a k1i0e@ or a hammer or other lethal weapo1. S!ch 0acts s!ppl> e7i"e1ce o0 malice prepe1se. Whe1 all the k1owle"e is i1 the mi1" o0 the acc!se"@ it is most reaso1able that he sho!l" state@ or his a"7ocate sho!l" s!est@ how the "eath occ!rre". #t is 1ot 1ecessar> to press the poi1t that@ i1 the abse1ce o0 other a7ailable e7i"e1ce@ killi1 is per se prima 0acie e7i" e1ce o0 malice@ beca!se i1 the prese1t case "eath was i10licte" b> a lethal weapo1 b!t e7e1 so@ o1e ca11ot with a liht heart "ismiss the '+* stateme1t o0 so hih a1 a!thorit> as Sir ichael oster 2 @ 0ollowe" i1 ast 23 $lacksto1e@ omme1taries 2* a1" repeate" i1 Archbol"@ rimi1al Plea"i1 a1" 7i"e1ce ,% @ a1" @ Laws o0 1la1". ,) oreo7er@ the appella1tIs ow1 expla1atio1@ that he i1te1"e" to 0rihte1 his wi0e i1to obe"ie1ce b> threate1i1 to shoot himsel0@ a1" showi1 her the !1 which he mea1t to !se@ "iscloses a1 !1law0!l i1te1tio1 a1" is s!00icie1t e7i"e1ce o0 malice a0oretho!ht. The a""itio1al 0acts o0 the 1ote 0o!1" i1 the pocket o0 his coat@ a1" the wor"s: Ma> Do" 0ori7e me 0or "oi1 this b!t it is the best thi1. .... 2 o1e 0or her a1" o1e 0or me@M show 0irst@ that the 1ote was writte1 be0ore the "ee"@ a1" seco1"l> that he i1te1"e" to shoot his wi0e a1" himsel0 a1" that@ i0 he ha" ha" a thir" cartri"e@ he wo!l" ha7e !se" it also. Those 0acts toether show that he we1t to the ho!se with a malicio!s i1te1tio1. #0 i1 p!rs!i1 a malicio!s i1te1tio1 a ma1@ e7e1 b> acci"e1t@ kills a1other perso1@ that is m!r"er. #1 that 7iew the case is a proper o1e 0or the applicatio1 o0 s. ' o0 the rimi1al Appeal Act@ )*% . o!1sel was 1ot calle" o1 i1 repl>. At the e1" o0 the ar!me1t 0or the respo1"e1t #S;8KT SAK9 L.. a11o!1ce" that the or"er o0 the o!rt o0 rimi1al Appeal wo!l" be re7erse" a1" that the co17ictio1 wo!l" be H!ashe" a1" that their Lor"ships wo!l" i7e their reaso1s at a later "ate. a> 2,. #S;8KT SAK9 L.. > Lor"s@ the appella1t@ Rei1al" Woolmi1to1@ a0ter a trial at the Somerset AssiJes at Ta!1to1 o1 Ca1!ar> 2,@ at which@ a0ter a1 abse1ce o0 o1e ho!r a1" twe1t>-0i7e mi1!tes@ the G!r> "isaree"@ was co17icte" at the $ristol AssiJes o1 ebr!ar> )' o0 the wil0!l m!r"er o0 his wi0e o1 (ecember )%@ )*,'@ a1" was se1te1ce" '% to "eath. !po1 the ro!1" that the lear1e" G!"e ha" mis"irecte" the G!r> b> telli1 them that i1 the circ!msta1ces o0 the case he was pres!me" i1 law to be !ilt> o0 the m!r"er !1less he co!l" satis0> the G!r> that his wi0eIs "eath was "!e to a1 acci"e1t. The appeal came be0ore the o!rt o0 rimi1al Appeal !po1 arch )3 a1" was "ismisse". The o!rt sai" Mit ma> be that it miht ha7e bee1 betterM ha" the lear1e" G!"e who trie" the case sai" to the G!r> that i0 the> e1tertai1e" reaso1able "o!bt whether the> co!l" accept his expla1atio1 the> sho!l" either acH!it him altoether or co17ict him o0 ma1sla!hter o1l> b!t@ rel>i1 !po1 s. '@ s!b-s. )@ o0 the rimi1al Appeal Act@ )*% @ which pro7i"es Mthat the co!rt
ma>@ 1otwithsta1"i1 that the> are o0 opi1io1 that the poi1t raise" i1 the appeal miht be "eci"e" i1 0a7o!r o0 the appella1t@ "ismiss the appeal i0 the> co1si"er that 1o s!bsta1tial miscarriae o0 G!stice has act!all> occ!rre"@M the> "ismisse" the appeal. There!po1 the Attor1e>-De1eral a7e his 0iat certi0>i1 that the appeal o0 Rei1al" Woolmi1to1 i17ol7e" a poi1t o0 law o0 exceptio1al p!blic importa1ce a1" that i1 his opi1io1 it was "esirable i1 the p!blic i1terest that a 0!rther appeal sho!l" be bro!ht. The matter 1ow comes be0ore >o!r Lor"shipsI ears ol". ears ol" last (ecember. The> ha" k1ow1 each other 0or some time a1" !po1 A!!st 26 the> were marrie". 8po1 ;ctober )' she a7e birth to a chil". Shortl> a0ter that there appears to ha7e bee1 some H!arrelli1 betwee1 them a1" she le0t him !po1 Ko7ember 22 a1" we1t to li7e with her mother. Woolmi1to1 appare1tl> was a1xio!s to et her to come back @ b!t she "i" 1ot come. The prosec!tio1 pro7e" that at abo!t *.)6 i1 the mor1i1 o0 the )%th rs. (ais> $ri1e was ha1i1 o!t her washi1 at the back o0 her ho!se at 26 Kewtow1@ ilbor1e Port. While she was e1ae" i1 that occ!patio1@ she hear" 7oices 0rom the 1ext "oor ho!se@ Ko. 2'. She k1ew that i1 that ho!se her 1iece@ Rei1al" Woolmi1to1Is wi0e@ was li7i1. She hear" ') a1" co!l" reco1iJe the 7oice o0 Rei1al" Woolmi1to1 sa>i1 somethi1 to the e00ect Mare >o! oi1 to come back home?M She co!l" 1ot hear the a1swer. The1 the back "oor i1 K o. 2' was slamme". She hear" a 7oice i1 the kitche1 b!t co!l" 1ot tell what it sai". The1 she hear" the so!1" o0 a !1. 8po1 that she looke" o!t o0 the 0ro1t wi1"ow a1" she saw Rei1al" Woolmi1to1@ whose 7oice she ha" hear" G!st be0ore speaki1 i1 the kitche1@ o o!t a1" et !po1 his bic>cle@ which ha" bee1 le0t or was sta1"i1 aai1st the wall o0 her ho!se@ Ko. 26. She calle" o!t to him b!t he a7e 1o repl>. . Accor"i1 to Rei1al" Woolmi1to1Is ow1 stor>@ ha7i1 broo"e" o7er a1" "eliberate" !po1 the positio1 all thro!h the 1iht o0 (ecember *@ he we1t o1 the mor1i1 o0 the )%th i1 the !s!al wa> to the milki1 at his emplo>erIs 0arm@ a1" while milki1 co1cei7e" this i"ea that he wo!l" take the ol" !1 which was i1 the bar1 a1" he wo!l" take it !p that mor1i1 to his wi0eIs motherIs ho!se where she was li7i1@ a1" tha t he wo!l" show her that !1 a1" tell her that he was oi1 to commit s!ici"e i0 she "i" 1ot come back. ca!si1 her to thi1k that he was oi1 to commit s!ici"e. two cartri"es which were there a1" p!t them i1to the !1. ar"s wi"e a1" "roppe" them i1to the brook. cle@ with the !1 i1 his o7ercoat pocket@ to his 0atherIs ho!se a1" cha1e" his clothes. The1 he ot a piece o0 wire 0lex which he attache" to the !1 so that he co!l" s!spe1" it 0rom his sho!l"er !1"er1eath h is coat@ a1" so we1t o00 to the ho!se where his wi0e was li7i1. o! comi1 back?M She ma"e 1o a1swer. She came i1to the '2 parlo!r@ a1" o1 his aski1 her whether she wo!l" come back she replie" she was oi1 i1to ser7ice. s@ threate1e" he wo!l" shoot himsel0@ a1" we1t o1 to show her the !1 a1" bro!ht it across his waist@ whe1 it somehow we1t o00 a1" his wi0e 0ell "ow1 a1" he we1t o!t o0 the ho!se. that it was a1 acci"e1t@ that it was a p!re acci"e1t that whilst he was etti1 the !1 0rom !1"er his sho!l"er a1" was "rawi1 it across his breast it acci"e1tall> w e1t o00 a1" he was "oi1 1othi1
!1law0!l@ 1othi1 wro1@ a1" this was a p!re acci"e1t. There was co1si"erable co1tro7ers> as to whether a letter i1 which he set o!t his rie7a1ces was writte1 be0ore or a0ter the abo7e e7e1ts. $!t whe1 he was arreste" at .,% o1 the e7e1i1 o0 the )%th a1" chare" with ha7i1 committe" m!r"er he sai": M# wa1t to sa> 1othi1@ except # "o1e it@ a1" the> ca1 "o what the> like with me. #t was Gealo!s> # s!ppose. 0rom me. # "o1e all # co!l" to et her back. ThatIs all.M The lear1e" G!"e i1 s!mmi1-!p the case to the G!r> sai":M#0 >o! accept his e7i"e1ce@ >o! will ha7e little "o!bt that she "ie" i1 co1seH!e1ce o0 a !1shot wo!1" which was i10licte" b> a !1 which he ha" take1 to this ho!se@ a1" which was i1 his ha1"s@ or i1 his possessio1@ at the time that it explo"e". #0 >o! come to the co1cl!sio1 that she "ie" i1 co1seH!e1ce o0 i1G!ries 0rom the !1 which he was carr>i1@ >o! are p!t b> the law o0 this co!1tr> i1to this positio1: The killi1 o0 a h !ma1 bei1 is homici"e@ howe7er he ma> be kille"@ a1" all homici"e is pres!me" to be malicio!s a1" m!r"er@ !1less the co1trar> appears 0rom circ!msta1ces o0 alle7iatio1@ exc!se@ or G!sti0icatio1. I#1 e7er> chare o0 m!r"er@ the 0act o0 killi1 bei1 0irst pro7e"@ all the circ!msta1ces o0 acci"e1t@ 1ecessit>@ or i10irmit> are to be satis0actoril> pro7e" b> the priso1er@ !1less the> arise o!t o0 the e7i"e1ce pro"!ce" aai1st him: 0or the law will pres!me the 0act to ha7e bee1 0o!1"e" i1 malice !1til the co1trar> appeareth.I That has bee1 the law o0 this co!1tr> 0or all time si1ce we ha" law. ;1ce it is show1 to a G!r> that ', somebo"> has "ie" thro!h the act o0 a1other@ that is pres!me" to be m!r"er@ !1less the perso1 who has bee1 !ilt> o0 the act which ca!ses the "eath ca1 satis0> a G!r> that what happe1e" was somethi1 less@ somethi1 which miht be alle7iate"@ somethi1 which miht be re"!ce" to a chare o0 ma1sla!hter@ or was somethi1 which was acci"e1tal@ or was somethi1 which co!l" be G!sti0ie".M At the e1" o0 his s!mmi1-!p he a""e": MThe row1 has ot to satis0> >o! that this woma1@ iolet Woolmi1to1@ "ie" at the priso1erIs ha1"s. #0 the> m!st satis0> >o! o0 that be>o1" a1> reaso1able "o!bt. #0 the> satis0> >o! o0 that@ the1 he has to show that there are circ!msta1ces to be 0o!1" i1 the e7i"e1ce which has bee1 i7e1 0rom the wit1ess-box i1 this case which alle7iate the crime so that it is o1l> ma1sla!hter or which exc!se the homici"e altoether b> showi1 that it was a p!re acci"e1t.M #1 the ar!me1t be0ore the o!rt o0 rimi1al Appeal cases were cite" b> the lear1e" co!1sel o1 either si"e a1" textbooks o0 a!thorit> were re0erre" to@ b!t the lear1e" G!"es co1te1te" themsel7es with sa>i1 Mthere ca1 be 1o H!estio1 to start with that the lear1e" G!"e lai" "ow1 the law applicable to a case o0 m!r"er i1 the wa> i1 which it is to be 0o!1" i1 the ol" a!thorities.M The> repeate" the lear1e" G!"eIs wor"s a1" sai": MKo "o!bt there is ample a!thorit> 0or that stateme1t o0 the law.M The> the1 relie"@ as # ha7e alrea"> me1tio1e"@ !po1 the pro7iso to s. ' o0 the rimi1al Appeal Act@ )*% @ a1" "ismisse" the appeal. #t is tr!e as state" b> the o!rt o0 Appeal that there is appare1t a!thorit> 0or the law as lai" "ow1 b> the lear1e" G!"e. $!t >o!r Lor"shipsI "eali1 with the matter i1 "eba te 0rom the earliest times@ a1 a"7a1tae which was 1ot share" b> either o0 the o!rts below. #1"ee" >o!r Lor"ships were re0erre" to leal propositio1s "ati1 as 0ar back as the rei1 o0 9i1 a1!te E**'-)%,6F. $!t # "o 1ot thi1k it is 1ecessar> 0or the p!rpose o0 this opi1io1 to o as 0ar back as that. Rather wo!l" # i17ite >o!r Lor"ships to bei1 b> co1si"eri1 the propositio1 o0 law '' which is co1tai1e" i1 osterIs row1 Law@ writte1 i1 )+2@ a1" which appears to be the 0o!1"atio1 0or the law as lai" "ow1 b>
the lear1e" G!"e i1 this case. #t m!st be remembere" that Sir ichael oster@ altho!h a "isti1!ishe" G!"e@ is 0or this p!rpose to be rear"e" as a text-book writer@ 0or he "i" 1ot la> "ow1 the "octri1e i1 a1> case be0ore him@ b!t i1 a1 article which is "escribe" as the M#1tro"!ctio1 to the (isco!rse o0 chare o0 m!r"er@ the 0act o0 killi1 bei1 0irst pro7e"@ all the circ!msta1ces o0 acci"e1t@ 1ecessit>@ or i10irmit> are to be satis0actoril> pro7e" b> the priso1er@ !1less the> arise o!t o0 the e7i"e1ce pro"!ce" aai1st him 0or the law pres!meth the 0act to ha7e bee1 0o!1"e" i1 malice@ !1til the co1trar> appeareth. A1" 7er> riht it is@ that the law sho!l" so pres!me. The "e0e1"a1 t i1 this i1sta1ce sta1"eth !po1 G!st the same 0oot that e7er> other "e0e1"a1t "oth: the matters te1"i1 to G!sti0>@ exc!se@ or alle7iate@ m!st appear i1 e7i"e1ce be0ore he ca1 a7ail himsel0 o0 them.M Kow the 0irst part o0 this passae appears i1 1earl> e7er> text-book or abri"me1t which has bee1 si1ce writte1. To come "ow1 to mo"er1 times@ the passae appears i1 Stephe1Is (iest o0 the rimi1al Law ,2 also i1 the well k1ow1 treatise o0 Archbol"@ rimi1al Plea"i1@ 7i"e1ce a1" Practice ,, @ which is the compa1io1 o0 law>ers who practise i1 the crimi1al co!rts. #t also appears almost text!all> i1 R!ssell o1 rimes ,' a1" i1 the seco1" e"itio1 o0 Is Laws o0 1la1" ,6 @ which p!rports to state the law as o1 a> )@ )*,,@ where it is sai": MWhe1 it has bee1 pro7e" that o1e perso1Is "eath has bee1 ca!se" b> a1other@ there is a prima 0acie pres!mptio1 o0 law that the act o0 the perso1 ca!si1 the "eath is m!r"er@ !1less the co1trar> appears 0rom the e7i"e1ce either 0or the prosec!tio1 or 0or the "e0e1ce. The o1!s is !po1 s!ch perso1 whe1 acc!se" to show that his act "i" 1ot amo!1t to m!r"er.M The '6 a!thorit> 0or that propositio1 is i7e1 as oster@ pp. 266@ 2*%@ a1" also the case o0 Rex 7. Dree1acre. ,+ The H!estio1 arises@ #s that stateme1t correct law? #s it correct to sa>@ a1" "oes Sir ichael oster mea1 to la> "ow1@ that there ma> arise i1 the co!rse o0 a crimi1al trial a sit!atio1 at which it is i1c!mbe1t !po1 the acc!se" to pro7e his i11oce1ce? To bei1 with@ i0 that is what Sir ichael oster mea1t@ there is 1o pre7io!s a!thorit> 0or his propositio1@ a1" # am co10irme" i1 this opi1io1 b> the 0act that i1 all the text-books 1o earlier a!thorit> is cite" 0or it. $e0ore@ howe7er@ o1e co1si"ers the earlier crimi1al law se7eral 0acts ha7e to be remembere". irst@ it was 1ot till )*% that the o!rt o0 rimi1al Appeal was set !p. #t is per0ectl> tr!e that 0rom time to time there ha7e bee1 0amo!s occasio1s o1 which the C!"es a1" $aro1s were calle" toether to i7e their opi1io1 !po1 the law beari1 o1 m!r"er. xamples o0 this will be 0o!1" i1 the >ear )+))@ i1 the case o0 ackalle> , @ all the C!"es a1" $aro1s were mo7e" to i7e their opi1io1 i1 )%+@ i1 the case o0 Re. 7. awri"e ,3 @ which case was ar!e" be0ore all the C!"es a1" all o0 them except Lor" hie0 C!stice Tre7or were o0 opi1io1 that awri"e was !ilt> o0 m!r"er a1" i1 )3', i1 the case o0 Re. 7. IKa!hto1 ,* @ where all the C!"es a7e a1swers to >o!r Lor"shipsI . IKa!hto1Is case '% sta1"s b> itsel0. #t is the 0amo!s pro1o!1ceme1t o 1 the law beari1 o1 the H!estio1 o0 i1sa1it> i1 cases o0 m!r"er. #t is H!ite exceptio1al a1" has 1othi1 to "o with the prese1t circ!msta1ces. #1 IKa!hto1Is case ') the o1!s is "e0i1itel> a1" exceptio1all> place" !po1 the acc!se" to establish s!ch a "e0e1ce. See Rex 7. ;li7er Smith '2 @ where it is state" that the o1l> e1eral r!le that ca1 be lai" "ow1 as to the e7i"e1ce i1 s!ch a case is that i1sa1it>@ i0 relie" !po1 as a "e0e1ce@ m!st be establishe" b> the "e0e1"a1t. $!t it was a""e" that all the G!"es ha" '+ met a1" resol7e" that it was 1ot proper 0or the row1 to call e7i"e1ce o0 i1sa1it>@ b!t that a1> e7i"e1ce i1 the possessio1 o0 the row1 sho!l" be place" at the "isposal o0 the priso1erIs co!1sel to be !se" b> him i0 he tho!ht 0it. See also Archbol"@ 2*th "itio1. ', @ #t
is 1ot 1ecessar> to re0er to IKa!hto1Is case '' aai1 i1 this G!"me1t@ 0or it has 1othi1 to "o with it. #t is tr!e that at a later perio" certai1 cases were reser7e" b> the G!"es 0or the co1si"eratio1 o0 the o!rt o0 row1 ases Reser7e"@ b!t ma1> o0 the propositio1s with rear" to crimi1al law are co1tai1e" either i1 the s!mmi1-!p o0 the G!"es or i1 text-books o0 a!thorit> as "isti1!ishe" 0rom a o!rt sitti1 i1 ba1c. The lear1e" a!thor o0 Stephe1Is (iest o0 the rimi1al Law '6 has a1 i1teresti1 1ote o1 the "e0i1itio1 o0 m!r"er a1" ma1sla!hter. $!t his remarks are rather "irecte" to the i1re"ie1ts o0 the crime tha1 to the proo0 o0 it. Ko1e the less@ the a!thor "oes 1ot hesitate to trea" a path o0 7er> rob!st criticism o0 the pre7io!s a!thorities. @ co10!sio1 a1" !1certai1t> o0 this bra1ch o0 the law.M s Mthese passaes@ o7erloa"e" as okeIs ma11er is@ with a H!a1tit> o0 loose@ rambli1 ossip@ 0orm the esse1ce o0 his acco!1t o0 m!r"er.M et so co10!se" that 1o opi1io1 o0 it ca1 be obtai1e" except b> rea"i1 thro!h chapters ,3 to '% a1" tr>i1 to make se1se o0 them@ a1" co1cl!"es b> sa>i1 Ep. '++F that Sir ichael oster Mto some exte1t mitiates the barbaro!s r!le lai" "ow1 b> oke as to !1i1te1tio1al perso1al 7iole1ce.M Kext it m!st be remembere" that priso1ers were 1ot e1title" to be represe1te" b> co!1sel@ except i1 cases o0 0elo1>@ where co!1sel miht ar!e the law o1 their behal0. Thir"l>@ it m!st 1ot be 0orotte1 that the priso1er himsel0 ' was 1ot allowe" to i7e e7i"e1ce be0ore the Act passe" i1 )3*3. '+ $eari1 these co1si"eratio1s i1 mi1"@ # 1ow t!r1 to some o0 the cases cite" to !s. # "o!bt whether i1 a1> o0 the earl> o1es the H!estio1 o0 the b!r"e1 o0 proo0 was co1si"ere". Rather the> were co1cer1e" with the i1re"ie1ts o0 the crime o0 m!r"er. ;1e o0 the 0irst "i00ic!lties was to settle the mea1i1 o0 express a1" implie" malice. #t was 1ot till )326 that $a>le> C@ i1 $romae 7. Prosser ' @ a7e his 0amo!s "e0i1itio1 o0 malice as mea1i1 a wro10!l act@ "o1e i1te1tio1all> witho!t G!st ca!se or exc!se. The ol"er cases were rather co1cer1e" to i7e examples o0 what miht be malice. This was so i1 ackalle>Is case. '3 the priso1er was there acc!se" o0 m!r"eri1 a serGea1t o0 Lo1"o1. The o!rts were alrea"> co1si"eri1 cases o0 express or implie" malice@ a1" the passae i1 oke appears simpl> to mea1 that i0 a ma1 "oes acts calc!late" to kill@ a1" act!all> "oes kill@ that is e7i"e1ce o0 malice or i1te1t i1 other wor"s@ e7i"e1ce o0 o1e o0 the i1re"ie1ts o0 m!r"er@ b!t it "oes 1ot seem to be at all c o1cer1e" with o1!s o0 proo0 or to s!pport the stateme1t o0 Sir ichael oster o1 that poi1t. ;1e o0 the most 0amo!s o0 the earlier treatises o1 crimi1al law was the o0 the Pleas o0 the row1 b> Sir atthew @ )+6. #t was k1ow1 that he ha" le0t a treatise o1 the s!bGect@ a1" !po1 Ko7ember 2*@ )+3%@ it was or"ere" b> the thi1 appears i1 o1 the priso1er. Looki1 at the e"itio1 o0 )3%% '* we 0i1" him aai1 co1cer1e" with what malice is. #t is hea"e" Mo1cer1i1 m!r"er b> malice implie" pres!mpti7e@ or malice i1 law@M a1" ackalle>Is case 6% is "!l> cite". '3
As appears 0rom osterIs Pleas o0 the row1@ Sir ichael oster was 0amiliar with 0or the propositio1 which is !1"er "isc!ssio1. #t ca11ot be "o!bte" that at that time i1 1lish o!rts o0 G!stice the law o0 e7i"e1ce was i1 a 7er> 0l!i" co1"itio1. #1"ee" i1 some ci7il cases it "i00ere" o1 "i00ere1t circ!its. See Weeks 7. Sparke 6) a1" also the 1ote xx. i1 Stephe1Is (iest o0 the Law o0 7i"e1ce. 62 #t was o1l> later that the o!rts bea1 to "isc!ss s!ch thi1s as pres!mptio1 a1" o1!s. #1 Wimore o1 7i"e1ce 6, @ a re0ere1ce is ma"e to the G!"me1t o0 Wea7er C. i1 the case o0 The State 7. $ra">. 6' This was cite" i1 the case o0 Rex 7. Sto""art 66 :MThe !se o0 the terms Ipres!mptio1 o0 !iltI a1" Iprima 0acie e7i"e1ce o0 !iltI with re0ere1ce to the possessio1 o0 stole1 oo"s has perhaps bee1 too lo1 i1"!le" i1 b> o!rts a1" text-writers to be co1"em1e" b!t we ca11ot resist the co1cl!sio1 that@ whe1 so emplo>e"@ these expressio1s are !10ort!1ate@ a1" o0te1 mislea"i1. .... IPres!mptio1sI o0 !ilt a1" Iprima 0acieI cases o0 !ilt i1 the trial o0 a part> chare" with crime mea1 1o more tha1 that 0rom the proo0 o0 certai1 0acts the G!r> will be warra1te" i1 co17icti1 the acc!se" o0 the o00e1ce with which he is chare".M We were re0erre" to the case o0 Rex 7. Le 6+ @ where it is sai" that at the Kewate Sessio1 i1 )+' Mo1e Coh1 Le@ bei1 i1"icte" 0or the m!r"er o0 r. Robert Wise@ it was !po1 the e7i"e1ce aree" that i0 o1e ma1 kill a1other@ a1" 1o s!""e1 H!arrel appeareth@ this is m!r"er.M ackalle>Is case 6 is H!ote" as a1 a!thorit> a1" the report oes o1: Ma1" it lieth !po1 the part> i1"icte" to pro7e the s!""e1 H!arrel.M With rear" to 9el>1Is Reports@ the critics ha7e rea tl> "i00ere". Sir Coh1 9el>1 was hie0 C!stice o0 the 9i1Is $e1ch. be hel" abo!t him as a G!"e@ !po1 which see ossIs $ioraphical '* (ictio1ar> o0 The C!"es o0 1la1" 63 @ the critics ha7e "i00ere" reatl> !po1 the 7al!e o0 his Reports. Lor" ampbell i1 his Li0e o0 9el>1e@ Li7es o0 the hie0 C!stices 6* @ sa>s M: see Wallace o1 The Reporters +% . The report o0 LeIs case +) is meare a1" !1satis0actor> a1" ca11ot@ # thi1k@ be hel" to mea1 that !1less the priso1er pro7e the s!""e1 H!arrel@ he m!st be co17icte" o0 m!r"er. The wor" Mo1!sM is !se" i1"i00ere1tl> thro!ho!t the books@ sometimes mea1i1 the 1ext mo7e or 1ext step i1 the process o0 pro7i1 or sometimes the co1cl!sio1 o0 the whole matter. awri"eIs case +2 @ alrea"> re0erre" to@ was cite" to !s 0rom 9el>1Is Reports@ b!t it was 1ot reporte" b> 9el>1 0or the simple reaso1 that it was 1ot trie" till )%+. ampbell@ i1 the Li7es o0 the hie0 C!stices +, @ sa>s it was reporte" b> 1Is Reports a1" is "escribe" as a case o0 Mreat expectatio1M a1" i7es the histor> o0 m!r"er trials i1 1lish o!rts 0rom the earliest times. The case@ howe7er@ is 1o a!thorit> 0or sa>i1 that the priso1er at a1 > time is calle" !po1 to pro7e his i11oce1ce H!ite the co1trar>. #t is a1other o0 those cases which "eal with malice a1" with what is s!ch pro7ocatio1 as will make the act o0 killi1 to be ma1sla!hter o1l>. #1 setti1 0orth i1 a special plea@ that he "i" it b> misa"7e1t!re@ or se "e0e1"e1"o@ b!t that he m!st plea" I1ot !ilt>@I a1" i7e the special matter i1 e7i"e1ce.M This poi1ts to the 0act that the 7er"ict m!st be i7e1 1ot o1 a1> special plea"i1 i7e1 b> the priso1er b!t '3% !po1 a1" as the res!lt o0 the whole o0 the case@ a1" it 1owhere s!ests that the b!r"e1 o0 proo0 either at the bei11i1 or at the e1" o0 a case is 1ot o1 the prosec!tio1.
The case o0 Rex 7. Dree1acre +6 was certai1l> hear" b> a 7er> "isti1!ishe" G!"e@ Ti1"al@ .C. $!t it is to be obser7e" that the "ict!m relie" !po1 b> the prosec!tio1 i1 this case - 1amel>: Mthat where it appears that o1e perso1Is "eath has bee1 occasio1e" b> the ha1" o0 a1other@ it beho7es that other to show 0rom e7i"e1ce@ or b> i10ere1ce 0rom the circ!msta1ces o0 the case@ that the o00e1ce is o0 a mitiate" character@ a1" "oes 1ot amo!1t to the crime o0 m!r"er@M was co1tai1e" i1 the s!mmi1-!p o0 the lear1e" G!"e to the G!r>. #t is the passae i1 Sir ichael oster a1" this s!mmi1-!p which are !s!all> relie" o1 as the a!thorit> 0or the propositio1 that at some partic!lar time o0 a crimi1al case the b!r"e1 o0 proo0 lies o1 the priso1er to pro7e his i11oce1ce. The pres!mptio1 o0 i11oce1ce i1 a crimi1al case is stro1: see Ta>lor ;1 7i"e1ce ++ @ a1" it is "o!bt0!l whether either o0 these passaes mea1s a1 > s!ch thi1. Rather "o # thi1k the> simpl> re0er to staes i1 the trial o0 a case. All that is mea1t is that i0 it is pro7e" that the co1scio!s act o0 the priso1er kille" a ma1 a1" 1othi1 else appears i1 the case@ there is e7i"e1ce !po1 which the G!r> ma>@ 1ot m!st@ 0i1" him !ilt> o0 m!r"er. #t is "i00ic!lt to co1cei7e so bare a1" meare a case@ b!t that "oes 1ot mea1 that the o1!s is 1ot still o1 the prosec!tio1. #0 at a1> perio" o0 a trial it was permissible 0or the G!"e to r!le that the prosec!tio1 ha" establishe" its case a1" that the o1!s was shi0te" o1 the priso1er to pro7e that he was 1ot !ilt> a1" that !1less he "ischare" that o1!s the prosec!tio1 was e1title" to s!ccee"@ it wo!l" b e e1abli1 the G!"e i1 s!ch a case to sa> that the G!r> m!st i1 law 0i1" the priso1er !ilt> a1" so make the G!"e "eci"e the case a1" 1ot the G!r>@ which is 1ot the commo1 law. #t wo!l" be a1 e1tirel> "i00ere1t case 0rom those exceptio1al i1sta1ces o0 special 7er"icts where a G!"e asks the G!r> to 0i1" certai1 0acts a1" "irects them that o1 s!ch '3) 0acts the prosec!tio1 is e1title" to s!ccee". #1"ee"@ a co1si"eratio1 o0 s!ch special 7er"icts shows that it is 1ot till the e1" o0 the e7i"e1ce that a 7er"ict ca1 properl> be 0o!1" a1" that at the e1" o0 the e7i"e1ce it is 1ot 0or the priso1er to establish his i11oce1ce@ b!t 0or the prosec!tio1 to establish his !ilt. C!st as there is e7i"e1ce o1 behal0 o0 the prosec!tio1 so there ma> be e7i"e1ce o1 behal0 o0 the priso1er which ma> ca!se a "o!bt as to his !ilt. #1 either case@ he is e1title" to the be1e0it o0 the "o!bt. $!t while the prosec!tio1 m!st pro7e the !ilt o0 the priso1er@ there is 1o s!ch b!r"e1 lai" o1 the priso1er to pro7e his i11oce1ce a1" it is s!00icie1t 0or him to raise a "o!bt as to his !ilt he is 1ot bo!1" to satis0> the G!r> o0 his i11oce1ce. This is the real res!lt o0 the perplexi1 case o0 Rex 7. Abramo7itch + @ which la>s "ow1 the same propositio1@ altho!h perhaps i1 somewhat i17ol7e" la1!ae. C!ries are alwa>s tol" that@ i0 co17ictio1 there is to be@ the prosec!tio1 m!st pro7e the case be>o1" reaso1able "o!bt. This stateme1t ca11ot mea1 that i1 or"er to be acH!itte" the priso1er m!st Msatis0>M the G!r>. This is the law as lai" "ow1 i1 the o!rt o0 rimi1al Appeal i1 Rex 7. (a7ies +3 @ the hea"1ote o0 which correctl> states that where i1te1t is a1 i1re"ie1t o0 a crime there is 1o o1!s o1 the "e0e1"a1t to pro7e that the act allee" was acci"e1tal. Thro!ho!t the web o0 the 1lish rimi1al Law o1e ol"e1 threa" is alwa>s to be see1@ that it is the "!t> o0 the prosec!tio1 to pro7e the priso1erIs !ilt s!bGect to what # ha7e alrea"> sai" as to the "e0e1ce o0 i1sa1it> a1" s!bGect also to a1> stat!tor> exceptio1. #0@ at the e1" o0 a1" o1 the whole o0 the case@ there is a reaso1able "o!bt@ create" b> the e7i"e1ce i7e1 b> either the prosec!tio1 or the priso1er@ as to whether the priso1er kille" the "ecease" with a malicio!s i1te1tio1@ the prosec!tio1 has 1ot ma"e o!t the case a1" the priso1er is e1title" to a1 acH!ittal. Ko matter what the chare or where the trial@ the pri1ciple that the prosec!tio1 m!st pro7e the !ilt o0 the priso1er is part o0 the commo1 law o0 1la1" a1" 1o attempt to whittle it "ow1 ca1 be '32 e1tertai1e". Whe1 "eali1 with a m!r"er case the row1 m!st pro7e EaF "eath as the res!lt o0 a 7ol!1tar> act o0 the acc!se" a1" EbF malice o0 the acc!se". #t ma> pro7e malice either expressl> or b> implicatio1. or malice ma> be implie" where "eath
occ!rs as the res!lt o0 a 7ol!1tar> act o0 the acc!se" which is Ei.F i1te1tio1al a1 " Eii.F !1pro7oke". Whe1 e7i"e1ce o0 "eath a1" malice has bee1 i7e1 Ethis is a H!estio1 0or the G!r>F the acc!se" is e1title" to show@ b> e7i"e1ce or b> exami1atio1 o0 the circ!msta1ces a""!ce" b> the row1 that the act o1 his part which ca!se" "eath was either !1i1te1tio1al or pro7oke". #0 the G!r> are either satis0ie" with his expla1atio1 or@ !po1 a re7iew o0 all the e7i"e1ce@ are le0t i1 reaso1able "o!bt whether@ e7e1 i0 his expla1atio1 be 1ot accepte"@ the act was !1i1te1tio1al or pro7oke"@ the priso1er is e1title" to be acH!itte". #t is 1ot the law o0 1la1" to sa>@ as was sai" i1 the s!mmi1-!p i1 the prese1t case: Mi0 the row1 satis0> >o! that this woma1 "ie" at the priso1erIs ha1"s the1 he has to show that there are circ!msta1ces to be 0o!1" i1 the e7i"e1ce which has bee1 i7e1 0rom the wit1ess-box i1 this case which alle7iate the crime so that it is o1l> ma1sla!hter or which exc!se the homici"e altoether b> showi1 it was a p!re acci"e1t.M #0 the propositio1 lai" "ow1 b> Sir ichael o ster +* or i1 the s!mmi1-!p i1 Rex 7. Dree1acre % mea1s this@ those a!thorities are wro1. We were the1 aske" to 0ollow the o!rt o0 rimi1al Appeal a1" to appl> the pro7iso o0 s. ' o0 the rimi1al Appeal Act@ )*% @ which sa>s: Mthe o!rt ma>@ 1otwithsta1"i1 that the> are o0 opi1io1 that the poi1t raise" i1 the appeal miht be "eci"e" i1 0a7o!r o0 the appella1t@ "ismiss the appeal i0 the> co1si"er that 1o s!bsta1tial miscarriae o0 G!stice has act!all> occ!rre".M There is 1o "o!bt that there is ample G!ris"ictio1 to appl> that pro7iso i1 a case o0 m!r"er. The Act makes 1o "isti1ctio1 betwee1 a capital case a1" a1> other case@ b!t we thi1k it impossible to appl> it i1 the prese1t case. We ca11ot sa> that i0 the G!r> ha" bee1 '3, properl> "irecte" the> wo!l" ha7e i1e7itabl> come to the same co1cl!sio1. #1 the res!lt we "ecli1e to appl> the pro7iso a1"@ as alrea"> state"@ we or"er that the appeal sho!l" be allowe" a1" the co17ictio1 H!ashe". > 1oble a1" lear1e" 0rie1" Lor" Atki1@ who has to presi"e at the Pri7> o!1cil to-"a>@ asks me to sa> that he co1c!rs i1 the opi1io1 which # ha7e "eli7ere". L;R( <WART .C. > Lor"s@ # co1c!r. L;R( T;L#K. > Lor"s@ # also co1c!r. L;R( WR#D Lor"s@ # also co1c!r.
Representation Solicitors 0or appella1t: . $!tcher & Simo1 $!r1s @ 0or larke@ Willmott & larke@ Ta!1to1. or the respo1"e1t: The (irector o0 P!blic Prosec!tio1s. ;r"er o0 the o!rt o0 rimi1al Appeal re7erse"@ a1" co17ictio1 H!ashe": !rther or"ere" that the ca!se be remitte" back to the o!rt o0 rimi1al Appeal to "o therei1 as shall be G!st a1" co1siste1t with this G!"me1t. Lor"sI Co!r1als@ April 6@ )*,6.