480 HOUSE OF LORDS [1952|

J. c.* LEJZOR TEPER . . . . . . APPELLANT;

1952 AND
May 28; THE QUEEN . . . . . . . REesPonDENT.
July 1.

ON APPEAL FROM THE SUPREME COURT OF BRITISH GUIANA,

Criminal Law — Evidence — Identification — Hearsay — Admis-

sibility—Res gestae—Principles applicable—Costs.
At the trial of the appellant on a charge of maliciously and
with intent to defraud setting fire to a shop in which he carried
on the business of a dry goods store, evidence given by a police
constable was admitted for the purpose of identification, and with-
out objection, that: ‘‘I heard a woman’s voice shouting ‘ Your
“* place burning and you going away from the fire’; immediately
“then a black car’’ came from the direction of the fire, and ‘‘in
“the car was a fair man resembling accused. I did not observe
‘the number of tha car. I could not see the fire from where I was
‘“standing.”” In cross-examination he said that he did not know
who or where the woman was. She was not a witness at the trial,
and it was common ground that the incident took place at a dis-
tance of more than a furlong from the site of the fire and that it
happened not less than 26 minutes after the fire was started :—
Held, that the words spoken by the woman did not form part of
the res gestae and were not therefore excepted from the fundamental
rule against the admission of hearsay evidence. The evidence was
wrongly admitted, and there being no other evidence of identifica-
tion which was of any value, and the circumstantial evidence which
alone the Crown had to rely on to connect the appellant with the
commission of the crime being inconclusive for the purpose, the
conviction was set aside.
While it could not be said that there was no legal evidence to
support a verdict of guilty, nevertheless the admission of the police
constable’s hearsay evidence was, having regard to the weakness of
the other evidence, so prejudicial to the accused that it deprived
‘him of the substance of a fair trial and the protection of the law,
and he had discharged the burden of establishing that there had
been a real miscarriage of justice.
To be admissible, it is essential that words sought to be proved
by hearsay evidence should be, if not absolutely contemporaneous
with the action or event, at least so clearly associated with it in
time, place and circumstances, that they are part of the thing
being done, and so an item or part of real evidence and not merely
a reported statement. Hearsay evidence for the purpose of identi-
fication should only be allowed if it satisfies the strictest test of
close association with the event in time, place and circumstance,
and in a criminal trial the event with which the words sought to

* Present: Lonp Normanp, Lorp Oaxsry and Lorp TucKER.

A.C. AND PRIVY COUNCIL. 481

be proved must be so connected as to form part of the res gestae is J.C.

the commission of the crime itself—here the setting fire to the
1962
building.
Regina v. Bedingfield (1879) 14 Cox C.C. 341; O’Hara v. Cen- Leszor
tral 8.M.T. Co. 1941 S.C. 363; Rex v. Christie [1914] A.C. 545; TEPER
and Regina v. Gibson (1887) 18 Q.B.D. 537 considered. v
THE QuHEN.
There were no circumstances which would justify a departure
from the ordinary rule of practice of the Board against giving costs
to the successf i] appellant in a criminal appeal.
Johnson v. The King [1904] A.C. 817, 825 applied; Waugh v.
The King [1950] A.C, 203 distinguished.

Appeat (No. 47 of 1951), by special leave, against the convic-

tion of the appellant, Lejzor Teper, in the Supreme Court of
British Guiana (Hughes J. and a jury) (February 7, 1951), on the
‘charge that he maliciously and with intent to defraud set fire on
October 9, 1950, to a shop belonging to his wife in Regent Street,
Georgetown, in which he carried on the business of dry goods
store. He was sentenced to seven years’ penal servitude. It
was clearly proved that the shop had been maliciously set on fire.
On the intent to defraud the Crown’s case was that the appellant,
having insured the building and stock for sums considerably above
their real value, set fire to them with the intention of claiming
against the insurance companies.
The grounds of the appeal were that hearsay and incompetent
evidence was admitted for the purpose of identifying the accused
as the man who set the premises on fire, that that evidence was
in a high degree prejudicial to the appellant, and that the other
evidence against him was such that no reasonable jury, properly
directed, could have convicted him on it alone, or at least that it
was so flimsy and inconclusive that it‘must have been outweighed
by the hearsay evidence in the jury’s consideration of the evidence
as a whole. The contentions for the Crown were that the
impugned evidence was properly admitted as part of the res
gestae, that even if it was inadmissible the appellant suffered no
real prejudice, and that the other evidence was amply sufficient
to entitle a reasonable jury to convict.
The witness whose evidence was impugned was police con-
stable Cato. He came on duty about 2 a.m. on October 9 and
then went along a street named Camp Street towards Regent
Street. He heard a shout of fire, and then one fire engine passed,
and after it a second fire engine, both going along Regent Street.
He stopped at the corner of Regent and Camp Street. His
evidence continued: “‘ There were crowds going east and west
AC. 1952, 88
482 HOUSE OF LORDS [1952]
J.C, “along Regent Street to and from the fire. I heard a woman’s
1952 ‘voice shouting ‘ Your place burning and you going away from
“‘ the fire’; immediately then a black car which was proceeding
Lzz0R
TEPER “west along Regent Street turned north into Camp Street; in the
v.
‘car was a fair man resembling accused. I did not observe the
THE QUEEN.
‘number of the car. I could not see the fire from where I was
‘‘standing.’’ In cross-examination he said that he did not know
who or where the woman was. She was not a witness at the
trial. It was common ground that the incident took place at a
distance of more than a furlong from the site of the fire and that
it happened not less than 26 minutes after the fire was started.
In British Guiana provision had now been made for a Court
of Criminal Appeal, but at the date of this conviction the only
means of bringing it under judicial review was by a case stated
by the judge of the court before whom the cause had been tried
for the opinion of the Court of Appeal (Criminal Law (Procedure)
Ordinance, Title 12). The appellant applied to the judge to state
a case on the admissibility of Cato’s evidence, but the application
was refused. The decision of the judge refusing the application
was not under appeal. ,

1952. May 26, 27, 28. G. D. Roberis Q.C., Dingle Foot,

C. Lloyd Luckhoo and M. P. Soloman for the appellant. In view
of the fact that no one had identified the man seen driving the
ear as the appellant the trial judge was wrong in holding that the
words which the witness Cato heard a woman use were admissible
as part of the res gestae. The fact that the evidence was not
objected to by the appellant is, on the authorities, immaterial;
no injustice, no breach of the rules of fair trial can be waived by
counsel for the accused. Instead of directing the jury that the
evidence in question, although not conclusive, might “‘ tie up”
with other evidence, the judge should have directed the jury to
disregard this evidence altogether. The evidence cannot be taken
as truth of the statement, but merely of the fact that the state-
ment was made. The prosecution made out no case; they did
not prove that the appellant was on the spot at the time, and it
was not suggested that he was under any financial stringency—
exactly the opposite was proved by the prosecution. Certainly
there was a deliberate setting on fire by somebody who used
petrol, but that in itself is not sufficient. The appellant was
stocking his premises al] the time, and that is the last thing he
would do if he intended to set fire to his store; he said that to do
A.C. AND PRIVY COUNCIL. 483

so would be burning his living. None of the elements of deliberate J.C.

arson which one would expect to find is present here. 1952
‘The trial judge refused to state a case for the consideration of
Leszor
the Court of Appeal in British Guiana. (A Court of Criminal TEPER
Appeal in British Guiana has been created only this year, and Vv.
THE QUEEN.
therefore it has no jurisdiction over the present appeal.) It is
submitted that the two authorities cited by the trial judge in his
decision not to state a case-—The Schwalbe? and Mersey Docks
Board v. Liverpool Gas Co.2—are no support at all for the
admission of this evidence. Its admission as part of the res
gestae is carrying the rule very much further than it has ever
been carried before. The prosecution, having had no evidence of
identity at all, have sought to introduce evidence which cannot
be cross-examined, and in respect of which all the normal safe-
guards are missing; that raises a question of natural justice and
justifies the intervention of this Board. There appears to be no
case in which this rule of the admission of hearsay evidence as
part of the res gestae has ever been used in an endeavour to give
evidence of identity.
With regard to the relevant authorities on the question of
statements admitted as part of the res gestae, apparently the first
use or application of the rule was in Thompson v. Trevanion.?
Tt was said in Rouch v. G.W. Ry.* that “the principle of
“admission is, that the declarations are pars rei gestae.’’ The
rule has been laid down in later cases: Rex v. Foster,’ and The
Schwalbe,® on which the judge below relied. The leading case is
Regina v. Bedingfield,” which, it is submitted, corrected the
somewhat too wide decisions of the period before 1879, and it was
approved later in Rex vy. Christie*® in the House of Lords.
Regina v. Gibson? is in some respects not unlike the facts of the
present case: in that case Lord Coleridge C.J. said: ‘‘I am of
‘‘ opinion that this conviction must be quashed, At the trial the
““ statement of a passer-by as to where the prisoner had gone was
““received in -evidence as tending to his identification. It is
“admitted that the statement was not made in the prisoner’s
“hearing, and therefore could not legally be given in evidence
‘“‘ against him.’’ It seems uncertain how far any of these cases
on the res gestae rule admit evidence of identification. In
1 (1859) Swab. 621. ® Swab. 521, 523.
2 “The Times,” Aug. 23, 1875. 7 (1879) 14 Cox C.C. 341.
8 (1698) Skin. 402. 8 [1914] A.C, 545.
4 (1841) 1 Q.B, 51, 60. 9 (1887) 18 Q.B.D. 537, 540.
5 (1834) 6 C. & P. 325.
484 HOUSE OF LORDS [1952]
J.C. Gibson’s case® it was an anonymous woman's statement which
1969 was offered in evidence to strengthen the prosecution evidence as
Luzon to identity, and neither counsel for the prosecution nor the judge
TEPER ever apparently considered it possible to suggest that this state-
Tue Quen. ment of an unidentified bystander was part of the res gestae.
— [Reference was also made to Rex v. Thomson.?°] Rew v.
Christie 4 is a very long way from the facts of the present case,
but there are’some references to res gestae: per Lord Atkin-
son!?: ‘‘ The boy’s statement was so separated by time and
‘ gireumstances from the actual commission of the crime that it
“was not, I think, admissible as part of the res gestae ’’; and
Lord Reading said '*: ‘‘In my view it was not so immediately
“connected with the act of assault as to form part of the res
‘‘ gestae,’’ and Regina v. Bedingfield'* was cited. It does
underline again the need for spontaneity—contemporaneousness;
there it was not sufficiently contemporaneous to be part of the
rea gestae.
There is one slightly different point. As stated in Phipson on
Evidence, 8th ed., ab p. 61:- ‘‘ Declarations are no proof of the
“fact they accompany; the existence of the fact must be
‘‘ established independently.”’ If the statement of the unidenti-
fied woman in the present case was admissible at all, it would
only be admissible to prove that she thought that she saw the
owner of @ building which she thought was on fire. It would
not be evidence to prove, or support any evidence, that the
appellant was at the scene of the fire. She might not even have
known which building was on fire. In support of the contention
that the statement is not evidence of the truth of the matter
stated, see Lloyd v. Powell Duffryn Steam Coal Co. Ld.*5
No case is to be found which comes anywhere near this case,
suggesting that the statement of this unidentified woman 230
yards away from the fire and 26 or more minutes after it started
could be admissible on the authority of any known principle, or
be said to be part of the res gestae. An irregularity in the trial
cannot be cured by consent of counsel: Abdul Rahman v. King-
Emperor.*® There was no other evidence of identification and
therefore it cannot be said, having regard to all the cireumstances
of the case, that if this evidence had been excluded a reasonable
jury, properly directed, must have found the appellant guilty,
® (1887) 18 Q.B.D. 687, 540. _ 18 Thid. 566.
10 [1912] 8 K.B. 19, @1. 14 14 Cox €.C. S41.
it [1914] A.C. 645. 15 [1914] A.C. 738, 752.
12 Thid, 656. 16 (1926) L.R. 64 IA. 96.
 A.C. AND PRIVY COUNCIL. 485

and there has been a substantial miscarriage of justice justifying J.C.

‘the intervention of the Board in accordance with the well-known 1952
rule: Dharmasena v. The King.1? The accused has been deprived
LEJZOR
of a fair trial in this case. The circumstances of this case are TEPER
such that the appellant should be given his costs throughout: cu
THE QUEEN.
Johnson v. Hea *® and Waugh v. The King.'*
C, Lloyd Luckhoo followed, and dealt with the facts, the
evidence and the time factor. _
Gahan @.C. and Godfrey Le Quesne for the Crown. In
Renouf v. Attorney-General for Jersey* the Board recognized
that there had been a serious misdirection, but nevertheless they
dismissed the appeal. On the facts of the present case, if any
inadmissible evidence were excluded a reasonable jury properly
' directed and having regard only to admissible evidence would
have convicted the accused, and there has been no substantial
miscarriage of justice. J*irst, on the question whether or not the
impugned evidence was admissible, it is difficult to get a clear
statement from the authorities as to the rule governing the
admission of hearsay evidence as part of the res gestae. What
is the res? In this case it might be either of two things, the fire,
or the evidence given of the incident in which Cato observed this
motor-car. If it be taken as the setting of the fire and all the
incidents connected with it, there is, it is frankly admitted, the
greatest difficulty in saying that what some person stated was
part and parcel of the fire. It would not be possible for evidence
to be given that this or that spectator at the fire heard some
other spectator say that he had seen the accused at the scene of,
the fire; that could only be proyed by direct evidence of the
person who saw the accused at the scene. The evidence of Cato
was in effect that this woman’s shout directed his attention to a
motor-car, and that therefore he observed a motor-car and saw
in it a person whom he could not definitely identify, but it was a
fair man resembling the accused. The evidence of Cato properly
included evidence, as part of the res gestae, of the contem-
poraneous remark which caused him particularly to notice the
passing motor-car and its driver. [Reference was made to
O’Hara v. Central 8.M.T. Co.,?4 to Stephen’s Digest of the Law
of Evidence, art. 8, and to the judgment of Parke B. in Wright
v. Doe. d. Tatham.??]. There ig nothing to show that this
evidence, if it were inadmissible, had any serious prejudicial
17 [1951] A.C. 1, 12. 20 [1986] A.C. 445, 471, 475.
18 [1904] A.C. 817, 825. 21 1941 3.C. 368, 380.
19 [1950] A.C. 203. 22 (1837) 7 Ad. & E. 313.
486 HOUSE OF LORDS [1952]
J.C. effect, and there has been no miscarriage of justice: Stirland v.
1952 Director of Public Prosecutions.** If there is such evidence that
any reasonable jury properly directed and confining its attention
Lzz0R
TEPER -to the admissible evidence, would convict, then the conviction
vp.
‘Tue QUEEN.
would stand although counsel had raised no objection to the
reception of inadmissible evidence. Apart from Cato’s evidence,
the guilt of the accused was proved beyond any reasonable doubt.
The practice is that in no criminal appeals, unless there are
very exceptional circumstances, will the Board allow costs. The
general rule is expressed in Shamdasani v. King Emperor.*+
Le Quesne followed.
G. D. Roberts Q.C. replied.

May 28. Lord Normand announced that their Lordships

would humbly advise Her Majesty that the appeal should be
allowed, and that they would give their reasons later.

July 1. The reasons of their Lordships for allowing the appeal

were delivered by Lorp Normanp, who stated the facts set out
above and continued:—An.important question of principle is
involved in the issue on the admission of the evidence, and their
Lordships propose to deal with it at once. That approach to the
appeal carries with it no inconvenience, for this evidence is
concerned with an incident which stands apart from the matters
dealt with in the rest of the evidence.
The rule against the admission of hearsay evidence is funda-
mental. It is not the best evidence and it is not delivered on
oath. The truthfulness and accuracy of the person whose words
are spoken to by another witness cannot be tested by cross-
examination, and the light which his demeanour would throw on
his testimony is lost. Nevertheless, the rule admits of certain
carefully safeguarded and limited exceptions, one of which is
that words may be proved when they form part of the res gestae.
The rules controlling this exception are common to the juris-
prudence of British Guiana, England and Scotland. It appears
to rest ultimately on two propositions, that human utterance is
both a fact and a means of communication, and that human
action may be so interwoven with words that the significance of
the action cannot be understood without the correlative words,
and the dissociation of the words from the action would impede
the discovery of truth. But the judicial applications of these
23 [1944] A.C. 315, 327. 24 (1945) L.R. 72 1A. 189.
ALC. AND PRIVY COUNCIL. 487

two propositions, which do not always combine harmoniously, J.C.

have never been precisely formulated in a general principle. 1952
Their Lordships will not attempt to arrive at a general formula, LzszoRr
nor is ib necessary to review all of the considerable number of TEPER
vw.
cases cited in the argument. This, at least, may be said, that it THE QUEEN.
is essential that the words sought to be proved by hearsay should
be, if not absolutely contemporaneous with the action or event,
at least so clearly associated with it, in time, place and circum-
stances, that they are part of the thing being done, and so an
item or part of real evidence and not merely a reported state-
ment: The Queen v. Bedingfield,?> O'Hara y. Central §.M.T.
Co,?6
How slight a separation of time and place may suffice to make
hearsay evidence of the words spoken incompetent is well
illustrated by the two cases cited. In Bedingfield’s case?’ a
wornan rushed with her throat cut out of a room in which the
injury had been inflicted into another room where she said
something to persons who saw her enter. Their evidence about
what she said was ruled inadmissible by Cockburn C.J. In
O’Hara’s case,** a civil action, the event was an injury to a
passenger brought about by the sudden swerve of the omnibus in
which she was travelling. The driver of the omnibus said in his
evidence that he was forced to swerve by a pedestrian who
hurried across his path. Hearsay evidence of what was said by
a man on the pavement at the scene of the accident as soon as
the injured party had been attended to was held to be admissible
in corroboration of the driver’s evidence. But what was said 12
minutes later, and away from the scene, by the same man was
held not part of the res gestae. In Christie's case,** the principle
of the decision in Bedingficid’s case *®® was approved by Lord
Reading, with whom Lord Dunedin concurred, and no criticism
of it is to be found in the speeches of the other noble and learned
Lords who sat with them. In The Queen v. Gibson ™ the prose-
cutor gave evidence in a criminal trial that, immediately after
he was struck by a stone, a woman going past pointing to the
prisoner’s door said, “‘ the person who threw the stone went in
‘there.’ This evidence was not objected to at the trial, but it
was admitted by counsel for the prosecution in a case reserved
that the evidence was incompetent. The conviction was quashed,
25 14 Cox 0.C. 341. 29 [1914] A.C. 546.
26 1941 §.C. 363. 30 14 Cox C.C. 841.
27:14 Cox C.C. 341. 31:18 Q.B.D. 587,
28 1941 S.C. 363.
488 HOUSE OF LORDS [1952]
v. C. and from their judgments it is clear that the judges who took
1952 part in the decision were far from questioning the correctness of
counsel’s admission. In Gibson’s case *! the words were closely
Leszor
Terre associated in time and place with the event, the assault. But
a. they were not directly connected with that event itself. They
THE QUEEN.
were not words spontaneously forced from the woman by the sight
of the assault, but were prompted by the sight of a man quitting
the scene of the assault and they were spoken for the purpose of
helping to bring him to justice.
The special danger of allowing hearsay evidence for the purpose
of identification requires that it shall only be allowed if it satisfies
the strictest test of close association with the event in time, place
and circumstances. ‘‘ Identification ig an act of the mind, and
‘the primary evidence of what was passing in the mind of a man
‘is his own testimony, where it can be obtained. It would he
“‘ very dangerous to allow evidence to be given of a man’s words
“and actions, in order to show by this extrinsic evidence that he
‘‘ identified the prisoner, if he was capable of being called as a
“‘ witness and was not called to prove by direct evidence that he
“had thus identified him ’’: Christie’s case, per Lord Moulton.*?
There is yet another proposition which can be affirmed, that
for identification purposes in 9 criminal trial the event with which
the words sought to be proved must be so connected as to form
part of the res gestae, is the commission of the crime itself, the
throwing of the stone, the striking of the blow, the setting fire to
the building or whatever the criminal act may be. The respon-
dent’s counsel submitted that any relevant event or action may
be accompanied by words which may have to be proved in order
to bring out its true significance. There is a limited sense in
which this is true, but it is not always true, and much depends
on the use to be made of the evidence. In Christie’s case *?
hearsay evidence of certain words uttered by a child, the victim
of an indecent assault, in the presence and hearing of the accused
were held to be admissible in explanation of the demeanour of
the accused in response to them. But the evidence was held
inadmissible for the purpose of showing that the child identified
the accused as his assailant. In the present case identification
is the purpose for which the hearsay was introduced, and its
admission goes far beyond anything that has been authorized by
any reported case.
Before assessing the prejudice caused by the wrongful admis-
sion of the hearsay evidence, and deciding whether it affected the
$1 18 Q.B.D. 537. 32 [1914] A.C. 545, 558.
ALC. AND PRIVY COUNCIL. 489

substantial justice of the trial, the nature and effect of the other J.C.
evidence must be looked at. One important observation falls to 1952
be made at the outset. There was no other evidence of identifica-
LrEzor
tion that was of any value, and the effect of this on the jury’s TEPER
mind would not improbably be to throw into relief the hearsay DvD.

‘THE QUEEN.
evidence and to give it prominence. Another result is that the
Crown has to rely on circumstantial evidence only to connect
the appellant with the commission of the crime. Circumstantial
evidence may sometimes be conclusive, but it must always be
“narrowly examined, if only because evidence of this kind may be
fabricated to cast suspicion on another. Joseph commanded the
steward of his house, ‘‘ put my cup, the silver cup, in the sack’s
““mouth of the youngest,’’ and when the cup was found there
Benjarnin’s brethren too hastily assumed that he must have stolen
it. It is also necessary before drawing the inference of the
accused’s guilt from circumstantial evidence to be sure that there
are no other co-existing circumstances which would weaken or
destroy the inference.
Over-insurance of the stock or building by the appellant would,
if proved, have been a most material cireumstance, and the Crown
therefore made every effort to prove it. Their Lordships have
carefully considered the evidence about the policies of insurance
entered into by the appellant, and they are satisfied that the
Crown’s case on over-insurance completely broke down. There
was no attempt to obtain insurance without the inspection of the
subjects insured by the companies’ agents, and there was no
concealment of previous policies when further cover was being
negotiated. There was no evidence of irregular disposal of stock
after insurance was effected, and no evidence that the appellant
could have had any expectation of recovering more than the value
of stock or buildings destroyed. Furthermore, it was proved that
the appellant had purchased and received delivery of goods for
stock up to the eve of the fire, and that his dealings with whole-
salers had been honest and above board. It was also proved that
he had in bank at the time of the fire a sum of about $12,000.
It was truly said that evidence of over-insurance goes to motive
and that it is not necessary for the Crown to prove the motive of
a crime. But the failure to prove motive in this case left the
Crown with the heavy onus of satisfying the jury that the appel-
lant wilfully destroyed his property without any proved prospect
of gain.
The Crown relied greatly on evidence that the back door of the
490 HOUSE OF LORDS [1952]
J. . building, which had been locked by a padlock on the outside and
1952 also fastened by a bar fixed by nails on the inside when the shop
Lrszor
was closed at 4 p.m. on the afternoon before the fire, was found
TEPER at the time of the fire to be neither padlocked nor barred. The
u

THE QUEEN, appellant had volunteered to the police a statement that he had
returned to the shop at about 5.30 p.m. to get a satchel for his
daughter. The suggestion is that he went back to the shop at
that time to unfasten the bar on the inside and so to make it
possible, when he returned at night to set fire to the premises,
to enter quietly by the back door instead of by the front door,
which made a noise when it was opened. There would have been
great force in this if it had been proved that the windows were
all securely fastened, but that was not proved. It cannot be left
out of account that someone other than the accused may have
entered by a window after taking the precaution of unlocking the
padlock of the back door so that he would have a ready means of
escape after he started the fire. The evidence leaves the matter
in a state of suspicion and doubt, but it is inconclusive.
On the other hand, the appellant had the opportunity, and
perhaps a better opportunity than anyone else, of preparing and
carrying out the crime. There is evidence that, with the excep-
tion of some petrol, all the combustible materials, such as wooden
boxes and straw, used to start the fire had: been kept in the
premises and that pains had been taken by the criminal to ensure
the destruction of the stock book, cash book and some other busi-
ness documents. These are circumstances of suspicion pointing
to the appellant, but an intelligent jury ought not to omit to
consider that any criminal who maliciously set fire to the appel-
lant’s premises might naturally have first acquainted himself with
their contents and might also have maliciously tried to make sure
of the destruction of the appellant’s business books, either in
order to embarrass the appellant or to throw suspicion on him.
Lastly, the Crown relied on the appellant’s conduct. He does
not appear to have been told by anyone that a fire had occurred
on his premises. He said in his statements to the police that he
spent the night of October 8 to 9 at home with his wife; he then
said: ‘‘ At 8 a.m. I was going to the Esso filling station to get
““gasolene when I saw a crowd standing opposite my store; I
“went up and noticed the building was gutted with fire and my
“stock destroyed by fire. It was only then that I learnt of the
‘disaster.’ It was submitted that this shows a very casual
afititude on the part of an innocent man whose property has been
ALC. AND PRIVY COUNCIL. 491

burnt. But if the meaning of the statement is that the appellant J. c.

gave only a cursory glance at his gutted store, it is almost equally 1952
inexplicable whether he was himself the cause of the fire or not. LeJz0R
It is not profitable to speculate about the meaning which the jury TEPER
may have attached to this piece of evidence or about the inference Vv.
THE QUEEN.
which they may have drawn from it. ‘There is more cogency in
the point that, if his story was true, he had a good alibi and yet
no member of his household was called to testify that he was at
home in bed when the fire oceurred. That is a circumstance
which might well have caused the jury to doubt the appellant’s
innocence. The appellant did not give evidence, but the question
ig whether the Crown proved its case by competent evidence and
in a trial which was not vitiated by the admission of incompetent
evidence.
The circumstantial evidence falls short of conclusiveness, and
a properly instructed jury having it alone before it would have
had a more than usually difficult decision to make. There were
several circumstances pointing to the appellant’s guilt, and
though not one of them alone was of great moment, yet juncta
juvant and it could not have been said that there was no legal
evidence to support a verdict of guilty, That, however, does not
decide the issue of the appeal. It is now necessary to consider
whether the admission of Cato’s hearsay evidence was, having
regard to the weakness of the other evidence, ‘‘ something which
‘‘ deprived the accused of the substance of fair trial and the
“ protection of the law’ (Ibrahim v. The King *; Renouf v.
Attorney-General for Jersey *4; Dharmasena v. The King *). It
is a principle of the proceedings of the Board that it is for the
appellant in ® criminal appeal to satisfy the Board that a real
miscarriage of justice has occurred. In Dal Singh v. The King
Emperor,** it was observed in a case where this Board had no
ground for doubting that the appellant had been properly con-
victed, that the mere admission of incompetent evidence, not
essential to the result, is not a ground for allowing an appeal
against conviction. In the same case it was stated that ‘‘ the
‘“ dominant question is the broad one whether substantial justice
‘‘has been done’’ and that in the particular case the question
was ‘‘ whether looking at the proceedings as a whole, and taking
‘‘into account what has properly been proved, the conclusion
‘* come to has been a just one.’’ *7
33 [1914] A.C. 599. 36 (1017) L.R. 44 LA. 187.
34 [1086] A.C. 445. 37 Tbid. 146.
35 [1951] A.C. 1.
492 HOUSE OF LORDS [1952]
J.C, Their Lordships have therefore in the end to decide whether
1952 the appellant has shown that the improper admission of the
Luzon hearsay evidence of identification was so prejudicial to the
Teper appellant, in a case where the rest of the evidence was weak, that
Tae Queny. the proceedings as a whole have not resulted in a fair trial. The
—_— test is whether on a fair consideration of the whole proceedings
the Board must hold that there is a probability that the improper
admission of hearsay evidence turned the scale against the
appellant.
Their Lordships are satisfied that the hearsay evidence was in
a high degree prejudicial. Its effect may be gauged by con-
sidering what Cato’s evidence would have amounted to if it had
been excluded. He could then only have said that in conse-
quence of something heard by him his attention was directed to
a man driving a black car who resembled the appellant. This
evidence would have been worthless for the purpose of identifying
the appellant with the man who set fire to a building a furlong
away and 26 minutes earlier. It is the hearsay and the hearsay
slone which gives dramatic force to Cato’s otherwise valueless
evidence of identification, and confers on it a specious
importance. It is impossible to avoid the conclusion that the jury
might well, and probably did, regard Cato’s hearsay evidence as
sufficient to turn the scale. Counsel for the Crown sought to
belittle the prejudice. It was said that the fact that no objection
was taken to it at the trial should be allowed ‘‘ to have some
“bearing on the question whether the accused was really
‘“ prejudiced '’ (Stirland v. Director of Public Prosecutions **).
That is a consideration which weighs in a case where the evidence
improperly admitted would not by its nature cause serious
prejudice, or where the other evidence lefi little or no reasonable
doubt of the appellant’s guilt. But it is of no real moment in
the present case. It was also submitted that the direction of the
judge in his charge sufficiently safeguarded the appellant. The
jury were directed that the evidence was not conclusive, but that
it could be taken along with other evidence, and that if from
other facts the jury found that the accused was there, this
evidence ‘‘tied up with it."’ Cato’s whole evidence was
accordingly left to the jury’s consideration to make of it what
they could along with the other evidence. It is not necessary to
decide what would have been the result if there had been a clear
direction to disregard entirely the hearsay evidence. But no
38 [1944] A.C. 315.
A.C. AND PRIVY COUNCIL. 493

direction short of that could avail to save the verdict, and the J. G
appeal must succeed. 1952
The result was intimated to the parties at the conclusion of LesZor
the argument. Thereupon the appellant’s counsel asked for the Terer
costs of the appeal and of the proceedings in the Supreme Court. Ve
Tar Queen.
The practice of the Board is against giving expenses to the
successful appellant in a criminal appeal save in very special
circumstances (Johnson v. The King**), and special cireum-
stances were found in Waugh v. The King.*° In the present case
there are no circumstances which would justify a departure from
the ordinary rule of practice.
Their Lordships have therefore humbly advised Her Majesty
that the appeal should be allowed. There will be no order as to
costs.

Solicitors: Hy. S. L. Polak & Co.; Burchells,

39 (1904] A.C. 817, 825. 40 [1950] A.C. 203.

NATIONAL AUSTRALASIA
BANK LD. OF APPELLANT; J. O.*
AND 1952
SCOTTISH UNION AND NATIONAL INSUR- July 10.

ANCE CO. LD. anp OvrHERS.. . . RESPONDENTS.

ON APPEAL FROM THE HIGH COURT OF AUSTRALIA.

Australia (Queensland)—Currency—Bank—Scheme of arrangement—

Issue of stock—Australian and English registers—Right to transfer
from one register to another—Voluntary liquidation—Redemption
of stock—Nominal value in Australian pounds.
Pursuant to a scheme of arrangement between the Queensland
National Bank and its creditors, which was sanctioned in 1897, the
bank created interminable imscribed deposit stock which the
registered holders of existing securities of the bank, which had arisen
from deposits made either in London or in Australia, accepted in
’ gatisfaction and discharge of such securities. The scheme further
provided, inter alia, that registers of the stock were to be kept at
specified offices of the bank in Australia and in London, and that
any registered holder was entitled at his option to have his stock

* Present: Viscount Simon, Lory Normanp, Lorp Oaxsey, Logp

Tucker and Lord ConHEN.