All England Law Reports/1944/Volume 2 /R v Thomas Michael Treacy –  2 All ER 229
 2 All ER 229
R v Thomas Michael Treacy
COURT OF CRIMINAL APPEAL
VISCOUNT CALDECOTE LCJ, HUMPHREYS AND ASQUITH JJ
11 JULY 1944
Criminal Law – Evidence – Cross-examination – Murder – Evidence of forgery to show motive introduced in cross-examination – Cross-examination to inadmissible statement by accused.
The appellant was charged with the murder of Kathleen Cornish. At the trial counsel for the prosecution put in evidence the following statement, made by the prisoner when in a state of serious ill health to a police officer, as to the reason why he left the locality in which the killing occurred, which took place on the day on which the appellant was due to appear in a local court on a charge of larceny: “… I was not going to face those charges because of something that had happened in the past coming out as I had been told it might not be avoided. The same thing as I am being questioned about now, the murder of Kathleen Cornish.” During the cross-examination of the appellant counsel for the prosecution put to the appellant two obviously forged documents which had been found in the appellant’s possession. These documents were not made exhibits, nor were they proved in any way, and their existence was not known to counsel for the defence. Counsel for the prosecution suggested that the letters were forged for the purpose of deceiving the murdered girl, although there was no evidence that the girl had ever seen the documents. The appellant was also cross-examined upon answers he had made in an inadmissible statement and those answers were contrasted with certain answers he had made in the witness box. On appeal it was contended on behalf of the appellant (i) that the statement should not have been admitted as it referred to a previous killing with which the appellant had been charged and (ii) that the cross-examination of the appellant was improper and prejudicial:–
Held – (i) the jury could not have inferred from the statement in question made by the appellant that it had any reference to a previous killing. The statement was admissible.
(ii) the forged documents were not relevant, and should not have been put to the witness.
(iii) the cross-examination of the appellant to a statement by the prisoner, which was itself inadmissible, was improper.
It is prerequisite of all evidence that it must be relevant to the issue being tried. Although greater latitude may be allowed in cross-examination than in evidence in chief, yet all questions asked must be relevant to the issue. In the present case the documents sought to be made the subject of cross-examination were admittedly not relevant to the charge being investigated and, therefore, were not a proper subject of cross-examination.
As to Relevant Facts in Criminal Cases, see Halsbury (Hailsham Edn), Vol 9, pp 183-188, paras 267-270; and for Cases, see Digest, Vol 14, pp 366-379, Nos 3875-3992.
Appeal from a conviction for murder. The facts are fully set out in the judgment of the court delivered by Humphreys J.
Cecil Havers KC and J C Llewellyn for the appellant.
Sir Charles Doughty KC and R H Blundell for the Crown.
This is an appeal from a conviction for murder at the Chelmsford Assizes after a trial before Wrottesley J. The appellant was convicted of the murder of a girl of 20 years of age, a munition worker, and apparently a girl of very respectable family. The prisoner himself was somewhat older than the girl: his age was about 27.
The case was one which depended upon circumstantial evidence. There was no actual eye-witness of the killing. The issue, and the only issue, at the trial was: Was it proved beyond reasonable doubt that the accused man was the person who murdered Miss Cornish? That somebody murdered her was beyond doubt. It was also beyond question that she was murdered in the early morning of 17 March, within a few minutes of 6 am in the morning, just as it was getting light.
She and the appellant had known each other for some months, and were lovers. They were talking of getting married. He, in fact, was a married man already, but there was evidence that his wife had left him, had gone off with another man, had had a child by that other man, and that he was either actually suing for a divorce, or taking steps with a view to obtaining a divorce. The girl knew that he was a married man. That evidence was given quite clearly by the mother of the appellant, who knew the girl and that the girl and her son were very fond of one another. They used to meet during the last week of the girl’s life very frequently, and one further fact that perhaps should be mentioned is that the father of the murdered girl was very much averse to her association with the appellant.
Upon Friday, 17 March, that girl left her father’s house at Westcliffe-on-Sea at about 5.30 am. She did as she was used to do, took a bus to Southend Station, and there she intended to catch a train due to leave at 6.1 am for Chelmsford, where she worked at a factory. On 17 March, the appellant met her, they travelled in that but to Southend Station together, and the bus arrived, according to all accounts, at the station at about 5.50 am. They were seen shortly after that, the pair of them, walking arm in arm.
The girl’s object in going to the station was obviously to catch that 6 am train to Chelmsford. The man, according to his story, did not intend to go to Chelmsford on that day. On other days he had been to Chelmsford with her by that train, but on that day he had no intention of going to Chelmsford; and the fact is that the girl, having taken the trouble to arrive at the station at 5.50 am with a view to catching that train, instead of going into the station and waiting on the platform, went off with the appellant, and they were seen by two witnesses at a place which is a little distance from there known as Stone-mason’s Yard. No person could be found who had seen that girl alive after that.
Shortly after 6 am her dead body was found on a path, again not a great distance away from Stonemason’s Yard, which made it pretty clear that after being seen by those witnesses, she had walked along a path known as Prittlewell Path, had got to a level crossing, and just beyond that had been murdered by someone. She was murdered by a person who had with him or her–obviously
more likely “him”–a knife with a rather long, thin blade. That had been driven into her, and she had probably died instantaneously as the result of her lung and one of the main vessels of the heart being pierced. The appellant was seen within 10 minutes of 6 am, at a cafe, again close to Stonemason’s Yard and he was there having some tea, and showed no signs of being in any unusual state of mind. After that the appellant disappeared. We know from the statement which he subsequently made, and about which there is no dispute, more or less what he did. He went for a walk. He got into an unused bungalow by breaking a window and spent most of the day there, and then at night he caught a train which took him up to London. When he was in London, he bought a large quantity of aspirins, as he himself admitted, to take his own life. He said that his object in leaving Southend on that day and not returning, as he did not intend to return, was that he had been charged a week or two before with larceny. He was on bail, and on that 17 March he ought to have been in Southend at the police court surrendering to his bail and being tried on a charge of larceny. He had no intention of being so tried, and in London he tried to get work which would enable him to stay away from Southend and, as he hoped, would prevent his being found. It follows that the prosecution were in a position to say that it was extremely probable that he left Southend on that morning because he had committed this murder. He himself said: No, he had nothing to do with the murder; that he had gone to London in order to escape from his trial for larceny, and there he had seen in a newspaper an account of the finding of the body of the girl whom he loved and it was that which so upset him that he decided to take his own life since he could not live without her. That was his statement.
Those facts show that he was the last person who was seen with this girl and was with her within quite a few minutes of her murder close to the place where she was murdered. Whatever the explanation, may be which he attempted to give of it, he fled for it and tried to hide himself in London, and when he was eventually giving an explanation, as he did in the witness box, of his movements on that morning, he told a story which may be said to be so unlikely as to be almost, if not quite, incredible. He said that this girl, having got to the station with the obvious intention of catching her train, suddenly said to him that she was going to meet her friend Dora. He said he walked with her to meet Dora, and they walked down to a street called Milton Street, which would lead them to the beginning of that Prittlewell Path where eventually the girl was found. He said:
‘We got as far as an A.R.P. shelter or warden’s post in Bradley Street, and then as we had not met her friend we walked back to the station again.’
That stroll, which was all it was, did not begin until after 5.50 am. By 6 am that girl had got some distance away from there and had been killed and her dead body found, and, therefore, the story which was told by the appellant was one which any jury might well say was incredible. The case, speaking of it as a case of circumstantial evidence, may be said to have been an extremely strong one from the point of view of two out of the three elements which have often been said by judges to be the usual elements to look for in a case of circumstantial evidence, opportunity, interest and conduct. Obviously the appellant had opportunity, such opportunity as was not open, according to the evidence, to any other person who could be suggested. His conduct was conduct which a jury might well think was the conduct of a guilty man, and his explanation, which was part of his conduct, was the explanation of a man who was telling a lie.
The one thing lacking was what has been described as interest, sometimes referred to as motive. Of that there was no evidence, and, if there was a weakness in the case for the prosecution, it was that they had no evidence to offer and no suggestion to make–and none was made in the opening of the case or in the course of the case for the prosecution–as to why this man in love with this girl should have suddenly killed her on that morning. There was not a shred of evidence to suggest a quarrel. There was no struggle. There was just nothing which would account to any person who desired to have it explained to him why the prisoner had murdered the girl.
It is common knowledge nowadays not only to lawyers but probably to most laymen that on a charge of murder it is not necessary for the prosecution to adduce any evidence as to why the murder was committed. The prosecution is there to establish, if they can, by evidence, that it was committed and by the accused person. Why he did it is a matter which they are not called upon to prove at all, and it may well be–I cannot say more–that, if the case had been left there, this man would have been convicted by the jury, as he in fact was after certain other incidents had taken place to which it is necessary to refer. But no one could suggest, and certainly counsel for the appellant has not suggested here for a moment that there was not a prima facie case upon which a jury could, if they chose, find this man guilty of that horrible murder.
It is said that certain documents were admitted in evidence which were wholly and totally inadmissible in evidence. If that be true, that is one of the grounds which the Criminal Appeal Act 1907, s 4, provides as a ground for quashing the conviction. It is further said that there was cross-examination administered to the appellant when he went into the witness box which was improper and prejudicial.
The first matter arises upon a statement which came to be made in these circumstances. The appellant, having spent the Saturday and Sunday in London, came back. When exactly he took the aspirins we do not know, but when he arrived by train at Rochford, a place about 4 or 5 miles from Southend, in the early morning, somewhere about 1.30 am, he was in a very bad state indeed. He had obviously taken a large number of aspirins, which made him a very sick man. He walked into the police station and there made a statement in this way: He had in his hand a copy of a newspaper, giving an account of the finding of the body of this girl, Miss Cornish. He pointed to his mouth and made it plain that he was not in a condition to speak, but indicated that he wished to make a statement. He was then given paper and pen, and he proceeded to write out in his own handwriting a statement which became an exhibit in the case. It was quite properly put in as an exhibit in the police court, and it is in two parts. It is a disjointed sort of document, as might be expected from a man in the condition in which he was. It begins:
‘I slept in shelter in London. [Then in reference to a letter which had been found upon him] That letter is from the girl concerned. I cannot give any more information than is already known … I can’t talk: haven’t been able to since yesterday: since I read the paper. I was very upset about Kathy [as he called her] the girl who I was engaged to. Friday I last saw her 5.40 a.m.’
Then he seems to have collapsed for a time but subsequently made another statement, that is to say he went on writing, and he wrote:
‘Nothing unusual, I had told her I was not going to court that morning as I was going to London and I was not going to face those charges because of something that had happened in past coming out as I had been told it might not be avoided. The same thing as I am being questioned about now the murder of Kathleen Cornish.’
I am allowed to say on behalf of my Lord and Asquith J that having read that statement they took exactly the same view of it as I did myself, and we may compare ourselves to three members of a jury. It never occurred to any of us that the last words in that statement might have reference to some previous killing of somebody or other or of any previous conviction of the man who was making the statement for any such crime. Such an idea never occurred to us at all. It seemed that the statement was rather nonsense, because it speaks of being questioned about the same thing “as I am being questioned about now the murder of Kathleen Cornish.” It seemed to be nonsense, because he could not have been questioned some time ago about the murder of Kathleen Cornish who had only died the day before.
We have been told to-day that the prosecution knew, that what he undoubtedly referred to in that statement was that he had been charged with a somewhat similar murder of a girl some years ago, and had been convicted of manslaughter. That was entirely unknown to the jury, and whatever risks the prosecution may have run in putting in that statement without cutting out those last words, in point of fact no harm was done in this trial because
we are satisfied that no member of the jury is the least likely to have taken the view that those ambiguous words, spoken by a man desperately ill, meant or had any reference to some previous conviction of himself for such a crime as manslaughter. Therefore, objection to the statement was properly overruled by Wrottesley J, who admitted it and, as a ground of appeal, that must fail.
The next ground of appeal is this: The prosecution concluded their case with the same evidence which they had given at the police court; they proved the facts which I have stated, and that one statement of the accused and no more. The evidence having been given, and the prosecution having closed their case, the appellant elected to give evidence, as he was entitled to do, and in examination-in-chief stated his case, which was the perfectly simple one, true or untrue:
‘I last saw the girl when I left her at the station, our second visit that morning to the station, waiting to catch her train. I went away and went into the Blue Bird cafe, where I had some coffee. That is the last I saw of her, and that is all I know about it. I am not guilty; I had nothing to do with her death.’
He was cross-examined and, quite early in the cross-examination two remarkable documents were put to him by counsel for the prosecution. They are typed. One is headed “St. Thomas Hospital, Paddington.” It does not want more to show it is a concocted document, because St Thomas’ Hospital is not in Paddington, as everybody knows. It says:
‘Dear Sir, Re your inquiries of Mrs. M. S. Treacy she died here from injuries received in a road accident in January, I remain yours sincerely, [then an undecipherable scribble] Medical Superintendent.’
It is a ridiculous document which would not deceive any educated person for a moment, because the spelling is wrong, and the whole wording of the thing indicates that it never came from any medical superintendent at all. It is undated.
The other document is this:
‘Dear Sir, Your wife died in Paddington Hospital St. Thomas the result of a road accident. This information was given by Mr. Bott, 70, Stafford Road, Kilburn, W.6, also by the medical superintendent of the hospital concerned. She died last January 25. I remain yours sincerely [and then follows a signature].
Those documents had in fact been taken by the police from a drawer in the appellant’s room. They were, therefore, technically documents found on him or in his possession on his being charged with this crime and as such, prima facie, would be admissible in evidence against him. That does not mean that it would be right that they should be given in evidence against him; they might be, for instance, such documents as a ticket-of-leave or something of that kind, which would show that the man was an old convict and therefore they could not be used against him. But they might conceivably have some reference to the case, and, therefore, prima facie, it may be said, were admissible in evidence against him without any evidence about them as to where they came from. They were either relevant to prove something in this case or they were not. If they were relevant to prove any part of the case for the prosecution, the duty of the prosecution we state unhesitatingly and as clearly as may be, was plain beyond question. Their duty was to produce them by the hand of the officer who found them, to give any evidence which the prosecution had as to where they came from, how they came into existence and how they got into the possession of the accused.
We are told that the prosecution had in fact evidence as to where they had been typed, and on what machine they had been typed; it was a machine to which at some time the accused had access, or at all events was used in the place where he worked. If that course had been adopted, they would then have become exhibits in the case. They would have been open for the inspection and examination of those who appeared for the accused. Nothing of that sort was done. It is not disputed in this case that what was done with them was that the prosecution just kept them up their sleeve; they decided not to put them in. No reference was made to them at the police court. No
reference was made to them at the trial, and the case for the prosecution was concluded without a word having been said, and counsel for the accused man, who was on his trial for murder, was in fact totally unaware of the existence of such documents, and, therefore, of course, totally unable to deal with them if they were suddenly produced, and quite without instructions as to what was the explanation.
It was in those circumstances that they were produced by counsel for the prosecution and put to the prisoner during cross-examination. The question that was put was:
‘For what purpose did you type or cause to be typed these two letters? [Letters handed to the witness]. Just read them.
‘Wrottesley J [who, of course, had no copies of them and knew nothing about them–they were not exhibits]: Q.–Are they letters? A.–Yes.
‘Q.–[Counsel for the Crown]–You understand my question? A.–Yes.
‘Q.–Then will you answer it? A.–They were just sent to me; I did not have them typed.
‘Q.–By whom were they sent? A.–I could not say.
‘Q.–[Wrottesley J.]–You said you did not type those letters? A.–That is right.
‘Q.–[Counsel for the Crown]–I do not want to suggest you typed them yourself, but were you aware that they were typed? A.–No, they came to me through the post.
‘Q.–I suggest to you that they were typed on a typewriter which was used in your place of employment, in the officers’ mess where you were last employed; is that so?’
We say beyond any question at all that, if that question was going to be put, it ought to have been prefaced by the proof that they were typed in the officers’ mess; then this man would have been able to answer, and his counsel would have been able to deal with such an accusation. There was no evidence from beginning to end, that they were typed in the officers’ mess, or anything else about them. The prisoner’s answer was:
‘They might have been, but I do not know; they came to me through the post.’
Then counsel for the defence not unnaturally began to ask about these things having up to that time assumed they were letters in the hand of his client, which, of course, he could not object to being produced, and Wrottesley J asked the prosecution:
‘Q.–What is the suggestion? A.–The suggestion is that these letters were used by him for the purpose of persuading this girl that his wife was dead.’
That was no doubt a perfectly correct statement by counsel, but it was a very unfortunate thing to say in the hearing of the jury, because there was no evidence to support it. It was not proposed to give any evidence to support it. There was one person who might have given such evidence, and that was the mother of the accused, who often saw this girl. No question was ever put to her about that, and there was not a rag of evidence from beginning to end that the girl ever saw those letters. The evidence of the accused as to these documents stood unchallenged.
Then there was a discussion as to whether, these letters being found in his possession, they were relevant to any issue which the jury had to try, and the matter was put in this way by counsel for the prosecution:
‘I can tell my friend what is the relevance of them. It is to show the motive he had for killing this girl, that is all. I am going to suggest to the jury that he knew on that Friday morning that the girl would have no more to do with him when she knew the truth, and that is why he killed her.’
That was understood at that time by those who heard counsel as referring to the fact that the man was a married man; but that was not what counsel had in mind. He had quite a different meaning at the back of his mind, as he has told us. These letters were then read. The two letters amount to this: They are two forgeries found in the possession of a man who is being tried for murder, and they are produced as forgeries. How were they relevant? It seems to us that the prosecution were in this difficulty: Either they were relevant or they were not. If they were relevant, as I have already said, they ought to have been proved in the proper way as part of the case for the prosecution. The prosecution have no right to pick out such
evidence as they think right to give to a jury in a criminal case. They have no right of that sort at all. Their duty is to put before the jury every fact that is relevant to the issue being tried by them and known to the prosecution and to prove it, whether in fact it helps the accused or is against him. That is the duty of the prosecution. But, if they were irrelevant, and one must assume that the prosecution regarded them as irrelevant because they made no attempt to prove them, in spite of the suggestion of counsel that they prove a motive, then they never ought to have been referred to, because anything more damaging to a man on his trial for one crime than the production of a couple of obvious forgeries having nothing to do with the case in question, but found on him, coupled with the suggestion: “I suggest you showed those to the girl with whose murder you are charged,” is impossible to conceive.
There the matter rested, and nothing more was heard about it so far as evidence was concerned. Nobody was ever called to show where these documents came from. Certainly no attempt was made to show that the girl ever saw them. Finally, when the matter came to the summing up, Wrottesley J, who may well have been puzzled about some of the aspects of this case, made this observation to the jury–it is the last observation before he told the jury to retire and consider their verdict:
‘There is one other point that I am not sure I mentioned to you. The accused man denied having concocted these letters about the death of his wife, and he said they came to him by post. That, of course, is his evidence. You will look at the originals, which I will hand to you, and you will remember his denial that he had nothing to do with them. You will bear in mind that undoubtedly his mother, who was called on behalf of the Crown, did say that the girl knew some time before her death that he had been married.’
Those documents, with those observations, were handed to the jury. How were they relevant? In our view, they were utterly irrelevant in this case. They did not tend to prove motive for this murder, and they constituted a most unfortunate piece of highly prejudicial evidence, one would say unwittingly admitted by Wrottesley J, who had not the whole matter before him, as it would have been if they had been proved at the police court and he had been able to read the depositions.
So much for those documents. The matter does not rest there. There was another document that was put in after strenuous opposition by the counsel for the appellant who, in our opinion, was perfectly right in his objection to it. It appears that this man made no less than four separate statements at different times. They were taken from him by the police. I have referred to one. There were two others, which have not been referred to in this case, except that they were two statements which he made, which apparently were never produced by the prosecution and, we may assume, were totally irrelevant. As to the fourth statement, what happened was this: At 1.30 am on 19 March, the appellant came to the Rochford Police Station, and made the statement to which I have referred. Then a doctor was sent for. He obviously required medical attention, and he was taken away to the hospital, but before he left for the hospital he was seen by another police officer. That officer told him in terms that he appeared to be the person for whom they were looking, and that he would be detained at that station on the charge of murdering that girl. That happened somewhere about 1.35 am in the morning. At 3 am, or so in the morning, there came another police officer. That police officer said, and his word may be taken, although it seems odd, that he had no idea that this man had been charged with murder, and was being actually detained at the police station on that charge. He himself had come from Southend, because he had heard on the telephone that day that this particular person ought to have surrendered to his bail at the Southend Police Station, and there was a warrant out for his arrest; and he came to tell him he was going to hold him, if necessary, upon that warrant upon charges of larceny. That was his business, and he said he did not know that that man was already under arrest on the charge of murder. In our view, it makes no difference whether he knew or not; the fact was that the accused was detained upon the charge of murder, and whoever was the senior officer at that police station ought to have seen that, being under arrest upon a charge of murder, no question
was put to that man about that murder, more particularly in view of the state in which he was, for he was still unable to talk although he could write.
What was done was that he was cross-examined by this second police officer, who wrote questions, to which the accused wrote answers, and we have before us a long sheet–three sides of paper–with the questions written by the officer and the answers written by the appellant, and some of those answers, it was suggested, did not quite tally with the statement. I am not sure whether they did or not, but they were contrasted at all events with the statement which he had made when he first went into the police station.
That document was thought by the prosecution to be of use from their point of view, and they tendered it in evidence at the police court. The magistrates, as we think, well-advised, came to the conclusion that, seeing that the man was at the time when that cross-examination was administered to him in custody on a charge of murder, they ought not to admit that statement, and they refused to allow it to go in. The prosecution apparently accepted that position, and nothing more was heard of that statement, until after the case for the prosecution was closed. No attempt was made to get Wrottesley J to admit that statement and no one heard anything about the statement until this man was in the witness box. Then he was cross-examined by counsel for the Crown upon those answers, and those answers were contrasted with the answers that he had been giving on that day in the witness box in the hearing of the jury.
I say with regard to that statement, as I said with regard to the two previous documents: either it was admissible in evidence or it was not. Counsel for the Crown did not think that he could have put in that statement against the appellant in the circumstances, seeing that the charge was one of murder. The statement, therefore, must be taken to be one that is inadmissible. But counsel for the Crown took the view:
‘When this man had made some statement in the witness box as to his movements on that morning which in my view did not agree with the statements which he had made in those inadmissible written answers to questions, I was entitled to put those to him.’
We entirely disagree. In our view, a statement made by a prisoner under arrest is either admissible or it is not admissible. If it is admissible, the proper course for the prosecution is to prove it, give it in evidence, let the statement if it is in writing be made an exhibit, so that everybody knows what it is and everybody can inquire into it and do what they think right about it. If it is not admissible, nothing more ought to be heard of it, and it is quite a mistake to think that a document can be made admissible in evidence which is otherwise inadmissible simply because it is put to a person in cross-examination. It is quite a mistake, and in our view that is another instance, an unfortunate instance, of what happened in this case without, as I have said, and I repeat it because I mean it, the slightest desire on the part of anybody to be otherwise than fair to the man who was on his trial.
Having regard to those unfortunate matters which took place, we have formed the opinion that this trial was profoundly unsatisfactory. We have had to consider what is our duty in the matter and, without discussing the case further, it is sufficient to say that we have felt it to be our duty to say that it was so unsatisfactory that we cannot do other than say that this conviction must be quashed and the appeal allowed.
Appeal allowed. Conviction quashed.
Solicitors: Director of Public Prosecutions (for the Crown); Registrar of the Court of Criminal Appeal (for the appellant).
R Boswell Esq Barrister.