People (Attorney General) v Coleman

• Jurisdiction: Ireland
• Judgment Date: 30 November 1945
• Date: 30 November 1945
• Court: Court of Criminal Appeal

The People (Attorney-General) v. Coleman.

THE PEOPLE (at the suit of the Attorney-General)

and

WILLIAM H. COLEMAN (1)

Court of Criminal Appeal.

Criminal law - Charge of criminal abortion - Conviction - Evidence - Admissibility - Character of accused - Uncorroborated evidence of accomplices - Warning of danger of convicting thereon - Judge's charge - Extract from text book on criminal abortion read to jury - Improper procedure - Criminal Justice (Evidence) Act, 1924 (No. 37 of 1924), s. 1 (f) (ii).

The accused was found guilty on two counts of criminal abortion and sentenced to fifteen years penal servitude on each count, the sentences to run concurrently.

At his trial he was asked questions in cross-examination tending to show that he was of bad character.

Held that these questions were admissible in view of the fact that counsel for the defence had asked questions of the witnesses for the prosecution, the woman in respect of whom the charge was brought and her husband, tending to show that the husband had committed the offence himself; that husband and wife had conspired to charge the accused with the crime; that prior to her marriage, the wife had used contraceptives, contrary to the teaching of her religion; and that the witnesses had married with the object of defeating justice, these suggestions being imputations on the character of witnesses for the prosecution within the meaning of s. 1 (f) (ii) of the Criminal Justice (Evidence) Act, 1924.

At the trial a document which the accused had dropped on the floor during an interview with his wife, while he wag in prison awaiting trial, and possession of which was taken by a warder, was give in evidence on cross-examination of the accused.

Held that, as on a fair reading of the document, it was an attempt to suborn witnesses and suggested the commission of a crime, it was not privileged from production, either as a communication between husband and wife, or as a communication between the accused and his solicitor. Further, it was clearly evidence of bad character, and the fact that it came into existence subsequently to the date of the offence charged, did not affect its admissibility as such evidence.

The only evidence against accused was the uncorroborated testimony of accomplices. The trial Judge warned the jury of the danger of convicting upon such evidence. At a later stage, he told the jury that if they believed certain evidence they would be justified in holding that the witnesses were not accomplices. This direction was erroneous. After the jury had retired, on the application of accused's counsel, he recalled them and withdrew this direction and repeated the warning that it would be dangerous to convict on the uncorroborated evidence of accomplices.

Held that the warning was adequate.

At the trial a document called "The Secret," which had been found in accused's house, was admitted in evidence on cross-examination of the accused. This document wag in the form of a story, and related how the author had performed two illegal operations. Accused swore that it was fiction, but the prosecution suggested that it was a record of fact, and the trial Judge told the jury that they would have to decide whether it was fiction or a record of fact and an admission by the accused that he had committed two criminal offences.

Held that there wag no evidence which would justify the jury in coming to the conclusion that the document wag a record of fact and an admission by the accused, and that the Judge should have so directed the jury.

In the course of his charge, the trial Judge read to the jury a passage from Parry on Criminal Abortion to the effect that, in the view of the author, a person who has been convicted of procuring an abortion and sent to penal servitude may persist in committing that offence. Reference had been made in the course of the trial to the fact that accused had twice been charged with an offence similar to the one with which he was then charged. The

jury had been told that on one occasion the charge had not been proceeded with, and that on the other occasion he had been convicted but the conviction had subsequently been set aside.

Held that the trial Judge was not entitled to read to the jury any passage from the book in question, and, further, that he should have told the jury that, of the offences so charged, they must regard the accused as innocent.

Accordingly, the appeal was allowed and the convictions on both counts set aside.

As there was admittedly sufficient evidence to support a conviction on each count, the Court ordered a new trial.

Criminal Appeal.

The applicant was tried in the Dublin Circuit Court on charges of using an instrument to procure miscarriage contrary to s. 58 of the Offences against the Person Act, 1861. The indictment contained two counts alleging that he did on the 15th March, 1944, and 22nd March, 1944, in the City of Dublin, with intent to procure the miscarriage of Judith Marjorie Bolton, use an instrument or other unknown means. The applicant was convicted on both counts and sentenced to fifteen years penal servitude on each count, the sentences to run concurrently.

The Circuit Court Judge (Judge Davitt) having refused to grant a certificate for leave to appeal, the applicant applied to the Court of Criminal Appeal for such leave.

The grounds of the application were as follows:—

1. That the conduct of the defence was not such as to justify evidence being admitted of the bad character and previous convictions of the accused, or to justify his being asked questions tending to show that he was of bad character or had been previously convicted of an offence.

2. That "Exhibit 8" should not have been admitted in evidence. [This was a document which the accused dropped on the floor during an interview with his wife, while he was in prison awaiting trial, and possession of which was taken by a warder.]

3. That the directions of the trial Judge to the jury on the subject of the uncorroborated evidence of accomplices was unsatisfactory.

4. That the document known as "The Secret" [described in the head note supra] should not have been admitted in evidence.

5. That the defence was not properly put to the jury by the trial Judge.

6. That the trial was unsatisfactory.

7. That the sentences were excessive.

The said Judith Marjorie Bolton married Alphonsus Mifsud on the 14th April, 1944. The further facts appear sufficiently for the purposes of this report from the judgment of the Court post.

Cur. adv. vult.

Sullivan C.J. :—

The applicant, William Henry Coleman, was tried by a Judge of the Dublin Circuit Court on two counts in an indictment in which he was charged with offences against s. 58 of the Offences against the Person Act, 1861.

The first count upon which he was tried alleged that on the 15th March, 1944, with intent to procure the miscarriage of Judith Marjorie Bolton, he unlawfully used an instrument or other unknown means. The second count alleged that on the 22nd March, 1944, he committed the same offence. On both counts he was convicted and on each count he was

sentenced to fifteen years penal servitude, the sentences to run concurrently.

The present application is for leave to appeal against conviction and sentence upon the grounds stated in the notice of application, which include insufficiency of evidence, the admission of evidence that was inadmissible, misdirection in law and in fact, and non-direction.

It will be necessary at a later stage when dealing with the arguments addressed to this Court to refer to certain parts of the evidence, but this application can be determined without discussing the evidence in detail.

A great body of evidence, both oral and documentary— the taking of which occupied seven days—was submitted to the jury, but the vital matter which they had to determine was whether they accepted the evidence of Mr. and Mrs. Mifsud or the evidence of the accused; and the evidence of the other witnesses was valuable mainly in so far as it assisted the jury to determine that matter.

If the evidence of Mr. and...