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LA205 - Criminal Law and Procedure 1 - Cases

 

REGINA v. SMITH.

 

Criminal Law-Evidence-Confession-Inducement-Inadmissible confession by private soldier to sergeant-major-Subsequent confession after caution-Whether original inducement spent.

Criminal Law-Homicide-Causation-Incorrect treatment before death-Whether break in chain of causation.
Causation
.

The appellant, a private soldier, was charged with the murder by stabbing of a soldier of another regiment during a barrack-room fight. Immediately after the fight the appellant's regimental sergeant-major put his company on parade and indicated that the men would he kept there until he learnt who had been involved in the fighting. At the trial the judge-advocate admitted in evidence a statement made by the appellant to the sergeant-major at that parade, confessing to the subbing. Evidence was also given of a subsequent confession made the following day to a sergeant of the Special Investigation Branch after a caution had been administered. The deceased man had received two bayonet wounds, one of which pierced the lung and caused haemorrhage While being carried to the medical reception station for treatment he was dropped twice. At the reception station he was given treatment which was subsequently shown to have been incorrect.

The appellant was convicted and appealed on the grounds, inter alia, that the alleged confessions were wrongly admitted in evidence and that the court was not properly directed as to causation :

Held, (1) that the confession obtained by the regimental sergeant-major was tainted by threat or inducement and was inadmissible.

(2) That if the threat or promise under which the first statement was made still persisted when the second statement was made, then that statement also was inadmissible; only if the time-limit between the two statements, the circumstances existing at the time me and the caution were such that it could be said that the original threat or inducement had been dissipated could the second statement be admitted as a voluntary statement; in the present case the effect of the original inducement was spent and the second statement was admissible.

Dicta of Taunton J. in Rex v. Meynell (1834) 2 Lew.C.C. 123; Patteson J. in Reg. v. Sherrington (1838) 2 Lew.C.C 123, 124; Whiteside C.J. in Reg. v. Doherty (1874) 13 Cox C.C. 23, 24: Denman J. in Reg. v. Rue (1876) 13 Cox C.C. 209, 210 applied.

(3) That, at the time of death the original wound was still an operating and a substantial cause, death could properly be said to be the result of the wound, albeit that some other cause also operated.

Dictum of Lord Wright in The Auroras [1943] P. 32, 39; [1943] 1 All E.R. 211; Minister of Pensions v. Chenille [1947] K.B.250;[1946] 2 All E.R 719 applied.

Reg. v. Jordan (1956) 40 Cr App R 152 distinguished.

APPEAL against conviction.

The appellant, Thomas Joseph Smith, a private soldier in the King 's Regiment, took part in a fight between a company of his regiment and a company of the Gloucestershire Regiment, who were sharing barracks in Germany, on the night of April 13.1958. Three men of the Gloucesters received stab wounds. One of them subsequently died.

Immediately after the fight a regimental sergeant-major the King's Regiment put his company on parade and that it was his intention to keep them there until he learnt who had been involved in the fighting. Nobody stepped forward, and he then addressed each man personally. He was told by the appellant that he had been in bed at the relevant time. The sergeant-major then said, in effect, that he would not leave until he got an answer, and the appellant stepped forward and confessed to the stabbing, which he said he had done with a bayonet which was by a bed in the barrack-room. The next day a sergeant from the Special Investigation Branch, having cautioned the appellant, referred to his earlier confession, and the appellant then made a statement admitting the stabbing.

The appellant was convicted of murder at a general court martial and was sentenced to imprisonment for life. He appealed on the ground that the confessions were wrongly admitted in evidence.

Roderic Bowen Q.C. and H. K. Woolf for the appellant. On the question of the admissibility of evidence relating to the first confession, the position of a soldier on parade is analogous to that of a man in custody; he is not entitled to leave the parade. The relationship of the individuals concerned is also relevant: in this case one was a regimental sergeant-major and the other was a young soldier in his regiment. In all the circumstances it was wrong of the judge advocate to rule that the admission made at the parade was a voluntary admission and that evidence relating to it was admissible. [Counsel was stopped on this point.]

On the assumption that the first admission was inadmissible, the whole proceedings were tainted by reason of what the regimental sergeant-major said at the parade. No objection was made at the trial in relation to the second admission, because the judge-advocate ruled that the first confession was admissible, but at the outset of the interview during which the second admission was made, the sergeant of the Special Investigation Branch faced the accused with the admission he had made to his regimental sergeant-major. The object of a caution is to place a man in the position of knowing, that he is not obliged to say anything. In this case the court has to be satisfied that the effect of the threat made by the regimental sergeant-major had been dissipated before the second admission was made, and that the fear which brought about the first admission no longer persisted in any way: Rex v. Meynell 1; Reg. v. Sherrington 2; Rex v. Knight and Thayre3 Reg. v. Doherty 4; Reg. v. Rosa Rue.5 It is impossible to say that once the parade was dismissed and the man was put in custody the inducement or threat had gone. The inducement was that the accused had been ordered to confess by his regimental sergeant-major, who was in authority over him, and that order remained.

On the question of causation, the court must be satisfied that the treatment subsequent to the wounding was normal. In this case there was abnormal treatment. Causation is a question of fact, and whether there has been a break in the chain of causation is a matter for the court. The issue should have been put to the court by the judge-advocate on the basis of Reg. v. Jordan.6 The court must be satisfied that the death was a natural consequence and was the sole consequence of the wound and flowed directly from it. First it must be considered whether immediately after the wounding the deceased man might have survived, and if his chances of survival were removed by the treatment he was given, death did not result from the wound. The function of the judge-advocate in a case of this kind is to give a careful summing-up, pointing out that the court must be satisfied that there was no break in the chain of causation, giving guidance on what constitutes a break, and then indicating evidence on which this issue should be determined: in this ease the judge-advocate should have said in effect that after the wound had been sustained there was a possibility that the would stop, and he should have posed the question whether that possibility was removed by what amounted to abnormal treatment. The directions of the judge-advocate were inadequate on this point. [Counsel referred to Reg. v. Ledger 7 and Thabo Meli v. The Queen 8]

E. Garth Moore for the Crown. On the question of evidence relating to the first admission, if this was inadmissible it was so presumably because the accused was enforced by a threat. The observations of the regimental sergeant-major were not directed to the accused alone, but to a whole company and were mixed up to a great extent with exhortation. The sanction for answering (merely to keep some people out of bed and on parade longer) was trivial; it was almost an abuse of language to call it a threat in circumstances such as these. Reg. v. Harris-Rivett 9 showed what exercised the minds of the court in applying the Judges' Rules in military matters.

On the question of causation, if what happened was a natural, probable and foreseeable consequences of what was done, anything coming in between was not truly a novus actus interveniens: Haynes .v. Harwood.10 Even, the wrongful act of a third party, if it is something which should reasonably be anticipated, will not break the chain of causation. Applying the general principle to the facts of this case, if a person is stabbed in the middle of a general affray it must be expected that he is not going to be treated in the best possible way at the most immediate moment. [Counsel referred to The Oropesa.11]

LORD PARKER C.J. stated the facts and continued: The court is quite clear that while there was nothing improper in the action taken by the regimental sergeant-major, the evidence of what took place was clearly inadmissible at the prisoner's trial. What the sergeant-major did might well, have been a very useful course of action in order to enable further inquiries to be made, but the court is satisfied that if the only evidence against the prisoner was a confession obtained in those circumstances, it would be quite inadmissible at his trial. It has always been a fundamental principle of the courts, and something quite apart from the Judges' Rules of Practice, that a prisoner's confession outside the court is only admissible if it is voluntary. In deciding whether an admission is voluntary the court has been at pains to hold that even the most gentle, if I may put it in that way, threats or slight inducements will taint a confession To say to all those on parade, "You am staying here and are not going to bed until one of you owns up" is in the view of this court clearly a threat. It might also, I suppose, be looked upon as an inducement in that the converse is true, "If one of you will come forward and own up, the rest of you can go to bed"; but whichever way one looks at it, the court is of opinion that while the action was perfectly proper and a useful start no doubt to inquiries, evidence in regard thereto was clearly inadmissible.

The matter, however, does not rest there because at about 7.30 the next morning Sergeant Ellis from the Special Investigation Branch came down to make inquiries, and he, when he first saw the appellant, gave him the usual caution. He, however, went on to refer then to what had happened the night before. Apparently after administering the caution, he said, "There was a disturbance last night in a barrack-room in Polish Barracks. I understand that after the disturbance you admitted to your R.S.M. that you had been involved and that you stabbed three men of the Gloucestershire Regiment." Apparently Sergeant Ellis by then had been told that three men were involved. The prisoner replied: "Yes, I am not denying it. I stabbed three of them all right." He was then asked if he wished to make a statement. He said: "Yes." A written caution was then made, which the prisoner signed, and there followed a statement which I need not read, but which admitted that he had stabbed about three of them altogether with a bayonet which he found on the floor of the room.

It is urged by Mr. Bowen on his behalf that the original taint in the confession given to the sergeant-major really persisted in these later confessions, both oral and in writing, and in writing, and in particular he points to the fact, as I have said, that Sergeant Ellis at the outset referred to what had taken place or what was said to have taken place the evening before. Mr. Bowen also referred us to a number of cases. It is unnecessary to refer to them in detail. He starts with Rex v. Meynell 12 in 1834, where in regard to a second confession Taunton J. said 13: "I am clearly of opinion that it is not receivable; it being impossible to say that was not induced the promise which the constable made to her in the morning. In other words, he was saying in that the second statement was inadmissible in that a promise made when the first statement was given was still in operation when the second statement was given. To the same effect was the opinion of Patteson J. in Sherrington's case 14, where he said: "There ought to be strong evidence to show that the impression under which the first confession was made, was afterwards removed, before the second confession can be received. I am of opinion, in this case that the prisoner must be considered to have made the second confession under the same influence as he made the first; the interval of time being too short to allow of the supposition that it was the result of reflection and voluntary determination." I should observe that in neither of those cases was a caution administered before the second statement was obtained.

He also refers to an Irish case of Reg. v. Doherty, 15 where Whiteside C.J., in ruling on the admissibility of the second statement said 16: "The judges have held that it must be shown that the prisoner thoroughly understood that he could expect no gain from a confession. The subsequent caution must be shown to have had the effect of removing all such expectation from the prisoner's mind. Again, in Reg. v. Rosa Rue, Denman J. said 17: " There are cases which hold that a confession once it rejected on the ground that it was made under an inducement does not become admissible merely from the fact that it was again made to some other person who has not held out an inducement, the inducement being deemed to be a continuing one. But I am not at this moment aware of any case in which it has been held that, where the person who held out the inducement is absent, then a confession made, to a third is not admissible, no fresh inducement having been held out. The general principle is clear, that if it is made out to the satisfaction of the judge that the statement was not made voluntarily, it is not admissible. It is not merely a question as to whom the confession is made or when it is made; but it is a matter in which you have to get at the mind of the prisoner, and see whether or not it is probable that the confession was made voluntarily, in the proper sense of the word." Having consulted Kelly L.C.B., Denman J. held on the facts of that case that the second statement was so connected with the original inducement as to be inadmissible.

The court thinks that the principle to be deduced from the cases is really this: that if the threat or promise under which the first statement was made still persists when the second statement is made, then it is inadmissible. Only if the time limit between the two statements, the circumstances existing at the time and the caution are such that it can be said that the original threat or inducement has been dissipated can the second be admitted as a voluntary statement.

In the present case the judge-advocate never had to or rule on this second statement. Having admitted the first statement, there was no question on that basis but that the second statement must be also admissible. Accordingly, he never had to rule on the question of admissibility. He never had to exercise any discretion in the matter, and there was no occasion for his leaving it to the court as to the value or weight to be attached to the confession. This court, however, is off the clear opinion that the second statement was admissible. No doubt the opening reference to what it was said he had said to the regimental sergeant-major put the appellant in a difficulty. No doubt it was introduced by Sergeant Ellis in the hope that thereby he might get a continued confession; but it is clear that the effect of any original inducement or threat under which the first statement was made had been dissipated. Quite apart from the fact that the caution was given and given twice, some nine hours had elapsed and the whole circumstances had changed. The parade had ended. The rest of the company had. gone to bed. The effect of the threat or the inducement was spent. On those grounds this court has come to the conclusion that the oral and written statements made to Sergeant Ellis were clearly admissible.

The second ground concerns a question of causation The deceased man in fact received two bayonet wounds, one in the arm and one in the back. The one in the back, unknown to anybody, had pierced the lung and caused haemorrhage. There followed a series of unfortunate occurrences. A fellow member of his company tried to carry him to the medical reception station. On the way he tripped over a wire and dropped the deceased man. He picked him up again, went a little farther, and fell apparently a second time, causing the deceased man to be dropped onto the ground. Thereafter he did not try a third time but went for help, and ultimately the deceased man was brought into the reception station. There, the medical officer, Captain Millward, and his orderly were trying to cope with a number of other cases, two serious stabbings and some minor injuries, and it is clear that they did not appreciate the seriousness of the deceased man's condition or exactly what had happened. A transfusion of saline solution was attempted and failed. When his breathing seemed impaired he was given oxygen and artificial respiration was applied, and in fact he died after he had been in the Station about an hour, which was two hours after the original stabbing. It is now known that having regard to the injuries which the man had in fact suffered, his lung being pierced, the treatment that he was given thoroughly bad and might well have affected his chances of recovery. There was evidence that there is a tendency for a wound of this sort to heal and for the haemorrhage to stop. No doubt his being dropped on the ground and having artificial respiration applied would halt or at any rate impede the chances of healing. Further, there were no facilities whatsoever for blood transfusion, which would have been the best possible treatment There was evidence that he had received immediate and different treatment, he might not have died. Indeed, had facilities for blood transfusion been available and been administered, Dr. Camps, who gave evidence for the defence, said that his chances of recovery were as high as 75 per cent.

In these circumstances Mr. Bowen urges that not only was a careful summing-up required but that a correct direction to the court would have been that they must be satisfied that the death of Private Creed was a natural consequence and the sole consequence, of the wound sustained by him and flowed directly from it. If there was, says Mr. Bowen, any other cause, whether resulting from negligence or not, if, as he contends here, something happened which impeded the chance of the deceased recovering, then the death did not result from the wound. The court is quite unable to accept that contention. It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting, in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.

There are a number of cases in the law of contract and tort on these matters of causation, and it is always difficult to find a form of words when directing a jury or, as here, a court which will convey in simple language the principle of causation. It seems to the court. enough for this purpose to refer one passage in the judgment of Lord Wright in The Oropesa, where he said 18: "To break the chain of causation it must be shown that there is something which I will call ultroneous, something unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic." To much the same effect was a judgment on the question of causation given by Denning L.J. in Minister of Pensions v. Chennell.19

Mr. Bowen placed great reliance on a case decided in this court of Reg. v. Jordan, and in particular on a passage in the headnote which says 20: "…that death resulting from any normal treatment employed to deal with a felonious injury may be regarded as caused by the felonious injury, but that the same principle does not apply where the treatment employed is abnormal." Reading those words into the present ease, Mr. Bowen says that the treatment that this unfortunate man received from the moment that he was struck to the time of his death was abnormal. The court is satisfied that Jordan's case was a very particular case depending upon its exact facts. It incidentally arose in this court on the grant of an application to call further evidence, and leave having been obtained, two well known medical experts gave evidence that in their opinion death had not been caused by the stabbing but by the introduction of terramycin after the deceased had shown that he was intolerant to it, and by the intravenous introduction of abnormal quantities of liquid. It also appears that at the time when that was done the stab wound which had penetrated the intestine in two places had mainly healed. In those circumstances the court felt bound to quash the conviction because they could not say that a reasonable jury properly directed would not have been able on that to say that there had been a break in the chain of causation; the court could only uphold the conviction in that case if they were satisfied that no reasonable jury could have come to that conclusion.

In the present case it is true that the judge-advocate did not in his summing-up go into the refinements of causation. Indeed, in the opinion of this court he was probably wise to refrain doing so. He did leave the broad question to the court whether they were satisfied that the wound had caused the death in the sense that the death flowed from the wound, albeit that the treatment he received was in the light of after-knowledge a bad thing. In the opinion of this court that was on the facts of the case perfectly adequate summing-up on causation; I say "on the facts of the case" because, in the opinion of the court, they can only lead to one conclusion: a man is stabbed in the back, his lung is pierced and haemorrhage results; two hours later he dies of haemorrhage from that wound; in the interval there is no time for a careful examination, and the treatment given turns out in the light of subsequent knowledge to have been inappropriate and, indeed, harmful. In those circumstances no reasonable jury or court could, properly directed, in our view possibly come to any other conclusion than that the death resulted from the original wound. Accordingly, the court dismisses this appeal.

Appeal dismissed.

Solicitors: Registrar, Courts-Martial Appeal; Director, Army Legal Services.

J.D.P.

END NOTES

1. (1834) 2 Lew. C.C. 122.

2. (1838) 2 Lew. C.C. 123.

3. (1905) 21 T.L.R. 310; 20 Cox C.C. 711.

4. (1874) 13 Cox C.C. 23.

5. (1876) 13 C.C. 209.

6. (1956) 40 Cr.App.R 152.

7. (1862) 2 F & F 857.

8. [1954] 1 WLR. 228; [1954] 1 All E R 373.

9. [1956] 1 QB 220; [1955] 3 W L R 823; [1955] 3 All ER 567.

10. [1935] 1 KB 146; 51 TLR 100.

11. [1943] P. 32; [1943] 1 All ER 242.

12. (1834) 2 Lew. C.C. 122.

13. ibid. 123.

14. (1838) 2 Lew. C.C. 123,124.

15. (1874) 13 Cox C.C. 23.

16. ibid. 24.

17. (1876) 13 Cox C.C. 209, 210.

18. [1943] P. 32,39.

19. [1947] KB 250.

20. (1956) 40 Cr.App.R. 152.

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