PERKING (Яpp.) JEFFERY (resp.). 1915. Evidence to negative such a defence, but he put forward no such defence, as he denied that he had done the act. The evidence was upon that ground inadmissible. On that issue of mistake the question of system is not important, and the question of intention does not arise at all; it is wholly irrelevant until it is shown that the act was done. If the evidence was admissible in this case it would be equally admissible in cases of larceny and other cases. To give evidence of a system for this purpose it is necessary to show indecent a regular course of conduct, and not merely a few isolated cases, exposureand there was no such evidence tendered here. The present case Question in cross-examin is very similar to Rex v. Rodley (109 L. T. Rep. 476; (1913) 3 K. B. 468), which was a stronger case for admitting the evidence, because there the facts were not in dispute. The man was on Evidence the premises, and the only issue was the question of intent. There the evidence tendered to prove intent was held to be inadmissible, and much more so was the evidence in this case prove similar rightly rejected, as all that was material was in dispute. Cur. adv. vult. ation of prisoner as to previous act to rebut denialEvidence to acts on other occasionsAdmissibility. May 14.-The judgment of the court (Lord Reading, C.J., The questions submitted to this court on the special case stated by the justices are: First, whether the respondent, giving evidence on his own behalf, could be asked in cross-examination if he had exposed himself to the same young woman at the same place in the month of May, 1914; secondly, whether evidence was admissible on the part of the complainant that he had so exposed himself in the month of May; and, thirdly, whether evidence was admissible on the part of the complainant that the respondent had on other occasions indecently exposed himself with intent to insult females at the same place and about the same hour. The justices refused to admit the question in cross-examination, or the other evidence, on the ground that it was not relevant to the issue, and was contrary to the provisions of the Criminal Evidence Act, 1898. With regard to the question in cross-examination, it appears now, by the notes of the evidence which have been supplied on the restatement of the case, that the respondent giving evidence in chief put his character in issue, and the question, therefore, might have been admitted on that ground alone; but in view of a rehearing of the case it is necessary to consider whether this and the other evidence tendered was admissible as being relevant to the issue. The Criminal Evidence Act, 1898, does not exclude any question in cross-examination which may tend to criminate the accused of the offence charged, nor any evidence which is PERKINS (app.) v. JEFFERY (resp.). 1915. ation of prisoner as to previous act Evidence admissible to show that he is guilty of the offence charged. Upon the hearing of the charge in the present case the complainant had to prove, first, that the respondent had exposed himself; secondly, that he had done so wilfully and not accidentally; and, thirdly, that he had done it with intent to insult her. In our opinion the question in cross-examination and the evidence of the complainant directed to show that he Evidencehad done the same thing at the same place and to the same Charge of indecent woman were admissible and relevant to each of these issues for exposurethe purpose of showing that she was not mistaken in her identiQuestion in fication; that it was done wilfully and not accidentally, and that cross-examinit was done with intent to insult her. The mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to any issue before the court: (see Makin v. Attorney-General for New South Wales, 69 L. T. Rep. 778, at p. 780; (1894) A. C., at p. 65, and Reg. v. Ollis, 83 L. T. Rep. 251; (1900) 2 Q. B. 758, and the judgment of Channell, J., at p. 781 (1900) 2 Q. B.). It is suggested that the defence raised in this case was one of identity, and that this was the only issue before the court; but, in our opinion, the statement of the respondent when arrested, "They have made a mistake, they have got the wrong man," would not preclude him from raising the other defences that the act was not wilful and not done with intent to insult the complainant; and it must be borne in mind that in criminal cases, and especially in those where the justices have summary jurisdiction, the admissibility of evidence has to be determined in reference to all the issues which have to be established by the prosecution, and frequently without any indication of the particular defence that is going to be set up. In the present case we think the cross-examination did suggest a possible defence on the ground that the act was not wilful or with intent to insult a female. With regard to the evidence tendered of other witnesses to show that the respondent had been guilty of a systematic course of conduct by indecently exposing himself with the intent to insult females on other occasions at the same place and about the same hour, the question is more difficult. The dates of the other occasions are not before the court, and, unless it appeared clearly that the defence that the act was not done wilfully or with intent to insult a female was going to be relied upon, and that the other occasions were sufficiently approximate to the alleged offence to show a systematic course of conduct, we think the evidence should not be admitted. The case of Rex v. Bond (95 L. T. Rep. 296, at p. 305; (1906) 2 K. B. 389), and particularly the judgment of Bray, J., at p. 418 (1906) 2 K. B.), is an authority which would justify the admission of such evidence: (see also Stephen's Digest of the Law of Evidence, 8th edit., art. 12: "When there is a question whether an act was accidental or intentional, the fact that such act to rebut denialEvidence to prove similar acts on other occasionsAdmissibility. PERKINS (app.) บ. JEFFERY (resp.). 1915. Evidence indecent exposure Question in formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is deemed to be relevant." But it is, we think, open to doubt whether evidence is admissible to prove a "system or course of conduct" unless it is relevant to negative accident or mistake, or to prove a particular intention: see the judgment of Lord Reading, C.J. in Rex v. Boyle and Merchant (24 Cox C. C. 406; 111 L. T. Rep. 638, at p. 641; (1914) 3 K. B. 339, at p. 347), where he said this: "We think that the ground upon which such evidence is admissible is that it is relevant to the question of the real cross-examin- intent of the accused in doing the acts. Its object is to ation of negative such a defence as mistake, or accident, or absence of prisoner as to previous act criminal intent, and to prove the guilty mind which is the Evidence necessary ingredient of the offence charged. There is, as is apparent from a consideration of the authorities, an essential difference between evidence tending to show generally prove similar that the accused has a fraudulent or dishonest mind, which acts on other evidence is not admissible, and evidence tending to show that he occasions had a fraudulent or dishonest mind in the particular transaction Admissibility. the subject-matter of the charge then being investigated, which evidence is admissible. It has been laid down that there must be a nexus or connection between the act charged and the facts relating to previous or subsequent transactions which it is sought to give in evidence to make such evidence admissible." to rebut denialEvidence to Having regard to what was said in the House of Lords in the case of Rex (or Director of Public Prosecutions) v. Christie (24 Cox C. C. 249; 111 L. T. Rep. 220; (1914) A. C. 545), as to the practice in a criminal case of guarding against the accused being prejudiced by evidence which though admissible would probably have a prejudicial influence on the minds of the jury out of proportion to its true evidential value, we think that such evidence as to other occasions should not be admitted unless and until the defence of accident or mistake, or absence of intention to insult, is definitely put forward. The case will be remitted to the justices for rehearing with this opinion of the court. Judgment accordingly. Solicitors for the appellant, Capron and Co., for J. E. Hill, Birmingham. Solicitors for the respondent, Judge and Priestley, for Philip Baker and Co., Birmingham. COURT OF CRIMINAL APPEAL. Monday, April 26, 1915. (Before Lord READING, C.J., COLERIDGE and AVORY, JJ.) REX v. METZ. (a) Trading with the enemy-Consent of Attorney-General to prosecution-Formal proof at trial unnecessary where consent actually given-Trading with the Enemy Act, 1914 (4 & 5 Geo. 5, c. 87), s. 1 (4). The Trading with the Enemy Act, 1914, provides that no prosecution under the Act shall be instituted except by or with the consent of the Attorney-General. Formal proof of the fiat of the Attorney-General was not given at a trial and no objection was raised. On appeal a preliminary point was raised that, owing to the want of formal proof of consent, the court before which the appellant was convicted had no jurisdiction. Held, that when the consent of the Attorney-General had in fact been obtained and proved at the police court, formal proof of such consent at the trial was not necessary and the technical objection could not prevail. APPEAL on a point of law against a conviction for trading with the enemy before Darling, J. at the Central Criminal Court. George Elliott, K.C. and H. D. Roome for the appellant.-The Trading with the Enemy Act, 1914, s. 1 (4), provides that a prosecution for an offence under sect. 1 shall not be instituted except by or with the consent of the Attorney-General. At the trial of the appellant no evidence was given that the necessary consent had been obtained. The court of trial therefore had no jurisdiction to try the appellant, and the proviso to sect. 4 (1) of the Criminal Appeal Act, 1907, does not apply: Rex v. Bates (22 Cox C. C. 459; 104 L. T. Rep. 688). It is necessary that the fiat of the Attorney-General should be produced at the trial, though the handwriting need not be proved unless challenged. The point was not taken at the trial, but the defence was not (a) Reported by R. F. BLAKISTON, E q., Barrister-at-Law. REX v. METZ. obliged to raise it. The prosecution must prove whatever is necessary for their case. It is true that the consent of the Attorney-General was in fact obtained. [AVORY, J. referred to Rex v. Waller (22 Cox C. C. 319; 102 L. T. Rep. 400), where a similar point arose with regard to the consent of the Director of Trading with Public Prosecutions.] 1915. the enemyConsent of AttorneyGeneral to prosecution -Formal proof at trial unnecessary where consent with the Enemy Act, 1914 (4 & 5 Geo. 5, c. 87), Travers Humphreys for the Crown.-The necessary consent was proved at the police court and was attached to the depositions. The judgment of the court was delivered by Lord READING, C.J.-The appellant was convicted of trading actually given with the enemy under the Trading with the Enemy Act, 1914. -Trading A point has been raised by counsel on his behalf that it is necessary that the consent of the Attorney-General should be obtained before a prosecution under the Act can be instituted. It is not said that the consent was not in fact obtained, but that there was no evidence of it at the trial. The consent was, as a matter of fact, produced and proved at the police court. The point raised is a purely technical one, as the document was in court at the trial, though not formally proved, and, if objection had been taken, the defect could have been cured at once. The objection s. 1 (4). cannot succeed here when counsel could have raised it at the trial if he so wished. A similar point arose in the case of Rex v. Waller (sup.) dealing with the consent of the Director of Public Prosecutions which is necessary before proceedings can be taken against habitual criminals. In that case the court said that, if. no objection was taken on behalf of the accused, the necessary consent must be presumed. Lord Alverstone, C.J. said, with regard to the procedure under the Vexatious Indictment Act, "It is the duty of the clerk of assize to satisfy himself before the bill is presented to the grand jury that all the necessary steps preliminary to indictment have been taken, and, unless objection be taken by the prisoner that there was no consent in fact, it is to be presumed that the clerk of assize has discharged his duty in that respect." The same principle applies in the present case. The case of Rex v. Bates (sup.) has been cited before us, where objection was taken that consent had not in fact been obtained. That is a totally different matter, and Lord Alverstone, C.J. pointed out that, although no question had been raised in the court below, it was necessary that consent should be given before a prosecution was instituted, and, as the consent had not in fact been obtained, the conviction was quashed. That decision does not conflict with the view of this court in the present case. The appeal will be dismissed. Appeal dismissed. Counsel for the appellant instructed by Williamson, Hill, and Co. Counsel for the Crown instructed by the Director of Public Prosecutions. |