Hope v The King

[1909] HCA 6

9 C.L.R.] OF AUSTRALIA.

257

H. C. OF A.

I saacs J.

I entirely concur, witli this additional observation;

1909.

I think sec. 114 of the Trade Marks Act 190.5 applies both to the

use and the registration of trade marks.

.Tames F. McK enzie

& Co.

H iggin's J. read the following judgment. I concur in the

V.

Leslie.

orders which have been .stated.

I think that the conditions

which are imposed on the registration under application 1192,

Higrĝ ins J.

taken with secs. 6, 50 and 51 of the Trades Marks Act 1905, sufficiently protect any rights which the respondents have under the New South Wales registration. Under sec. 50, registration under that Act is mere prim d facie evidence of right to ex­ exclusive use; and under sec. 51 it becomes after five years con­ clusive evidence “ subject to this Act ”—that is to say, subject (inter alia) to sec. 6.

Appeals allowed.

Solicitors, for the appellants. Waters & Crespin.

Solicitor, for the respondents, 8. E. Pile, Sydney.

B. L.

[HIGH COURT OF AUSTRALIA.]

H O P E .........................................................................A p p e l l a n t ;

THE KING .

.

R e s p o n d e n t .

ON APPEAL FROM THE SUPREME COURT OF

H. C. OF A.

VICTORIA.

1909.

Appeal to Hifjh Court in Criminal Case — Special leave — Evidence — Dying Melbourne,

declaration. -

^farch\5.

On the trial of a woman for tlie murder of a girl, statements made by the

deceased girl within 24 hours of her death, which had been reduced to O’Connor,

Isd&cs

w ritin g and signed by her, an d a lso con v ersa tio n s be tw een h e r and th e

Hig-gins JJ.

258HIGH COURT

[1909.

H.	C. OF A.persons to wlioin she made the statements which were reduced to writing,
1909. were admitted in evidence. Tiie accused was convicted. A question as to the admissibility of tiiis evidence iiaving been referred to the Fuli Court, the
Hofk conviction was afhrmed. Special leave to appeal to tlie High Court was

V.

sougiit on tile grounds that tile principle upon wliich dying declarations are

T iik

K i no .

admissilile had been wrongly stated, and that wdiere such declarations are

reduced to writing, oral evidence of what the deceased said is inadmissibe.

ffeM {Imacn J. dissenting), applying the principle in In re DUki, 12 App. Cas., 459, at p. 407, that the case was not one in which special leave should be granted.

Special leave to appeal from the decision of tlie .Supreme Court: Rex v.

Hope, (1909) V .L .Il., 149 ; .10 A .Ii.T ., 107, refused.

M otiox for special leave to appeal froiu the Supreme Court of

Victoria.

Florence Hope was tried before Cussen J. and a jury of twelve on a cliarrre of murder. Tlie case for the prosecution was based on allegations that the accused had unlawfully used an instru­ ment to procure the miscarriage of a girl named Bertha Elizabeth Whitford, that in consequence the miscarriage had taken place, and that as the result the girl had died.

Certain statements were made by the deceased within twenty- four hours of her death to two police officers on se^iarate occasions, some of which were reduced to writing in the form of two .state­ ments, and were signed by the deceased. These written state­ ments were put in evidence, and the two police officers also gave evidence as to the conversations between them and the deceased at the time the written statements were made. Counsel for the prisoner contended that the written statements were inadmissible as it was not shown that the deceased had a settled, hopele.s.s expectation of immediate death, and also that in both cases they were made in answer to questions, and in one ca.se that the ques­ tions and answers were not reduced to writing.

The jiu y having found the accused guiltj’, Cussen J. reserved for the Full Court the question whether the evidence of either of the two jiolice officers, including the written statements put in evidence, was inadmissible in any particular.

The Full Court having affirmed the conviction {Re.r v. Hi/pe) (1),

(1) (1909) V.K.R., 149 ; 30 A.L.T., 167.

2 5 ^

9 U.L.R.] OF

AUSTRALIA.

the accused now applied to tlie Higli Court for special leave to

Ft. C. OF A.

1909.

appeal.

H ope

Scliutt, for the appellant. The Full Court in stating the cir-

r.

'1’he

Kino .

ciniistance.s under which dying declarations are admissible has omitted that the expectation of death must be hopeless. Where the statement of a person immediately prior to his death has been reduced to writing, that is the best evidence of the state­ ment, and other prior statements made by him not reduced to writing are inadmissible.

[Isaacs J. referred to Taylor on Evidence, 10th ed., p. 513; R. V. Gay {!)-, R. v. Scedlan (2); R. v. Reason (3); R. v. M it­ chell (4).

H iggixs j . referred to Phipson on Evidence, 4th ed., p. 279.]

Griffith C.J. The majority of the Court are of opinion tkat this ca.se falls within that of In re Dillet (5), a decision which has been followed in this Court, and that special leave to appeal should be refused.

I saacs J. I regret that I take a different view, and I think that, where it is a case of life or death, nothing in the shape of a technicalitj’ should stand in the way of giving a person sentenced to death an opportunity of preserving his life. In R. V. Bertrand (6), Bir John T. Coleridge in delivering the opinion of the Privj' Council said :—“ The re.sult is, that any application to be allowed to appeal in a criminal case comes to this Committee labouring under a great preliminary difficulty— a difficulty not always overcome by the mere suggestion of hardship in the circunrstances of the case ; yet the difficulty is not invincible. I t is not necessaiy, and perhaps it would not be wise, to attempt to point out all the grounds which maj’ be available for the purpose; but it maj' safely’ be said that when the suggestions, if true, raise questions of great and general importance, and likelj’ to occur often, and also where, if true, they show the due and orderlj’ administration of the law inter-

(1) 7 C. & P., 230.(4) 17 Cox C.C., 50.3.

(2) I Cr. & I) Ah. C., 340.(5) 12 App. Cas,, 4,59.

(3) 1 Sira., 499.

(6) L.R. 1 P.C., 520, at p. 5,30.

260 HIGH COURT

[1909.

H.	C. OF A.rupted, or diverted into a new course, vvliicli iniglit create a
1909. precedent for the future ; and also wliere tliere is no otlier means

H opkof preventing tlie.se conse(|uence.s, then it will be proper for this

V.

T he K ing.Connnittee to entertain an appeal, if referred to it for its

decision.”

I n re Dillet (1), was a case in which the rule was

Isaacs J>

laid down, but there leave to appeal was granted because the prisoner was prejudiced and so the actual decision supports the present application. In the last case before the Privy Council: Tshingum uzi v. Attorney-General of N atal (2), leave was refu.sed on the authority of In re Dillet (1). That was a case of disputed evidence and of the proper inference to be drawn from the evidence, and the Court said;—“ It is impracticable to .suppo.se that in such a case . . . this Board can judge better than those who have heard the witnesses themselves.”

Now what is the present case ? I t is a case where a woman wifS charged with the murder of another woman by an illegal operation. The Doctor who made a post mortem examination of the body of the deceased said tha t death was caused by a perforation extending through the wall of the womb into the surrounding ti.ssue in an upward and outward direction. He then went on to describe the state of the organ, and he .said that in his opinion the condition was produced by the introduction into the uterus of some instrument, and tha t an instrument like a catheter, which was produced, would cause the perfoi’ation. A good deal, therefore, turns upon the nature of the instrument which probably caused the perforation. Now in the written statements made by the deceased there is no description of the instrument whatever, except that it was a tube. The nature, shape, and substance are left all undetermined. That is so also with regard to the other written statement. The only place in wliich I can see any reference to the nature of the instrument is in the oral statement, alleged by the witness Jenkins to have been made to him by the deceased, tha t the instrument was like a syringe with the end turned up. That is a very important statement and, in my opinion, extremely pertinent to the ques­ tion whether the perforation in an upward and outward direction was caused by the prisoner or by some other person, for the

(1) 12 App. Cas., 459.

(2) (1908) A.C., 248, at p. 250.

9 C.L.U J OF AUSTRALIA.

261

H. C. OF A.

deceased left tlie prisoner’s house some time afterwards.

If tliat

1909.

oral evidence was not admissible there was imminent peril of the

ju ry’s minds being affected by that testimony, and I think that

H ope

V.

in tluit case substantial injustice would have been done. This is

T he K ing.

not a technicality. The technicality, I think, is in not

givin g-

Isaacs J.

effect to it. The position of a jjrisoner on trial for her life is not one in which she should be tied down b}' the most rigid rules of procedure.

Now, there is a considerable body of authority to be found in Taylor on Evidence, 10th ed., p. 513, and the cases there referred to, which, as far as it goes, is in support of the position that, whei’e a declaration is made bj' a dying person and is reduced to writing and signed, that written declaration is the one intended by him to be used. I t is the final revised statement to which he wi.shes to pin his faith and to pledge his djdng breath. Therefore in this anomolous state of affairs, where an unsworn statement, taken without the accused having the smallest opportunity of testing it bj" cross-examination, is admitted in evidence, the law regards its admission, as was said by Byles J. in R. v. Jenkins (1), “ with scrupulous, and I had almost said with superstitious, care.” I feel that in this case, which is one of life and death, it would be right to allow the accirsed to have a chance of having the matter argued, and I therefore am unable to concur in the judgment of the Court.

H ig g ix s J. I concur in the decision of the Court. I would like to say with reference to one of the points raised by Mr. Scliutt, as to the evidence of what was verbally said not being admissible if what was said has been committed to writing, that the case of R. V. Sheridan (2) appears to me to be conclusive. That was a prosecution for breach of a law about holding meetings in which the accused was charged with having read out a certain resolu­ tion at a meeting. The prosecution proposed to give evidence of what was said in reading out the resolution, and objection was taken. The Judges held that what was said was admissible. Lord Chief Justice Downes said :—“ I do not feel that this objec­ tion to the evidence has any -weight. The paper alluded to is

(1) L.R. 1 C.C.R., 187, at p. 193.

(-2) 31 How. St. Tr., 5J.3, at p. 673.

2G2HIGH COURT

[1909.

H . C. OF A.

not tliat kind ot‘ in.strinnent vvliicli should, in the first instance,

1909.he jii'oduced, or accounted for, before evidence of an inferior

Hopnnature can be given. The objection is founded upon a presump­ tion that there is a document of an authentic nature, showing

T j i e

K i n o .

what the proceedings were, and that it is not competent to give

Ilisiilitm J.

evidence of those proceedings, without producing that document. 'J'he evidence offered is to show the transactions of the meeting ; what was said by the one and the other; in short, the general conduct of the assembly. This cannot be rejected because there was some person there who took notes of what jiassed. Possibly, that person may have a more accurate account; but it goes no

further than that.”

Tlie other Judges concurred.

Laave to appeal ref used.

Solicitors, for the appellant, P. ./. Ridgeway.

B. L.

[HIGH COURT OF AUSTRALIA.]

JtfX ES .

A p p e l l a n t ;

I n f o r m .v x t ,

GEDYE .

R e sp o n d e n t .

D e f e n d a n t ,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

H. C. OF A

Trade Mark—Falsely applying trade mark—Defence—Mo intention to dejraiai —

igog_

Trade Marks Act 1905 (*Vo. 20 of 1905), sec. 87.

'—’—'

The words “ intent to defraud” in sec. 87 of the Trade Marks Act 1905

M ei.bourne, mean intent to induce purchasers to believe that goods to which a trade

October 11.mark is falsely applied, and which are manufactured by the seller, are manu­

Griffith C.J.,

factured by some person other than the seller.

O’CoHiior ami

Isaacs JJ.An information for an offence under the section, to which it was a defence to show that the defendant had no intent to defraud, having been dismissed.