LORD SUMNER. The appellant, Ibrahim, is
a natural-born subject of the Ameer of Afghanistan, who was duly enlisted and
enrolled on January 12, 1911, in the 126th Regiment of Baluchistan Infantry at
Quetta. He took the oath of allegiance to His Majesty and made a solemn
declaration undertaking among other things to go wherever ordered by land or
sea. On September 4, 1912, he was a private serving with the detachment of that
regiment which was encamped on Sha-mien or Shameen Island at Canton as guard of
the Concession. On Shameen are situated the various European settlements
including the British. About 10.30 P.M. Subadar Ali Shafa, a native officer in
the same regiment, was murdered. Ibrahim was charged with the crime, tried
before the Supreme Court of Hong Kong, and convicted. He was sentenced to death,
but sentence was respited pending the hearing of this appeal, which was brought
by special leave in forma pauperis. His grounds are two: first, that the
jurisdiction of the Court was not established, and, second, that there was a
grave miscarriage of justice by reason of the misreception of evidence.
The jurisdiction of the Supreme Court of
China and Corea is conferred by the Foreign Jurisdiction Act, 1890, and by the
China and Corea Order in Council, 1904, and includes criminal jurisdiction. Art.
V. provides that “the jurisdiction conferred by this Order extends to the
persons and matters following, in so far as by treaty, grant, usage, sufferance
or other lawful means, His Majesty has jurisdiction in relation to such matters
and things, that is to say: (1.) British subjects, as herein defined, within the
limits of this Order ….; (3.) foreigners, in the cases and according to the
conditions specified in this Order and not otherwise; (4.) foreigners, with
respect to whom any State, King, chief or government, whose subjects or under
whose protection they are, has, by any treaty as herein defined or otherwise,
agreed with His Majesty for, or consents to the exercise of power or authority
by His Majesty.”
By art. VI. it is provided that “all His
Majesty's jurisdiction, exercisable in China or Corea for the hearing or
determination of criminal or civil matters, …. shall be exercised under and according to the provisions of this Order in Council and not
otherwise.”
The contention, therefore, is that the
jurisdiction of the Supreme Court, conferred by and only exercisable in
accordance with the Order in Council, was not shewn to extend, and therefore for
the purposes of this case did not extend, to Ibrahim, who is admittedly an
Afghan and a subject of the Ameer. Art. III. of the Order defines a “British
subject” thus: “British subject includes a British-protected person, that is to
say, a person, who either (a) is a native of any
protectorate of His Majesty and is for the time being in China or Corea, or
(b) by virtue of the Foreign Jurisdiction Act, 1890, or
otherwise, enjoys His Majesty's protection in China or Corea.”
There was no evidence of any treaty or
other instrument by which the Ameer had agreed with the Crown for the exercise
by His Majesty of power or authority over his subjects; but it may be reasonably
inferred from the practice of enlisting native Afghans in Indian native
regiments, whereby they are de facto brought under the authority of His Majesty,
a practice which is matter of public knowledge, that the Ameer does in fact
consent to such enlistment with its consequences. Whether or not this suffices
to bring such enlisted Afghans within the terms of art. V. (4.) of the Order in
Council, “foreigners, with respect to whom any State, King, chief or government
whose subjects …. they are …. consents to the exercise of power or authority by
His Majesty,' it is not necessary for their Lordships now to determine.
The British Vice-Consul at Canton, who
in September, 1912, was also Acting Consul, is judge of a Provincial Court, held
at Canton under art. XIX. of the Order, which is a Court of record, and by art.
XXII. exercises “all His Majesty's jurisdiction, civil and criminal, not under
this Order vested exclusively in the Supreme Court.” He was called as a witness
at Ibrahim's trial and deposed that the place of the murder was entirely within
his jurisdiction; that the jurisdiction exercised at Canton on Shameen is the
same exterritorial jurisdiction as is exercised throughout China by the Supreme
Court; that it is still in force; that “the Indian soldiers enjoy His Majesty's
protection in Shameen, Canton, and the Court exercises jurisdiction over them”; and that “consular protection extends to trying persons and
protecting them if they are improperly arrested.” This evidence was not modified
under cross-examination or contradicted in any way by evidence for the defence.
The witness went on to say that he conducted the preliminary examination in this
case and considered it expedient that the case should be sent for trial to Hong
Kong (an opinion in which Major Barrett, commanding the detachment, concurred),
thus satisfying the provisions of art. L. of the Order with regard to the
transfer of the case from Shameen to Hong Kong.
Their Lordships are of opinion that s.
4, sub-s. 1, of the Foreign Jurisdiction Act, 1890, does not prevent this
evidence from being admissible upon the question and that, in the absence of
contradiction and of any grounds for real doubt, this evidence by itself
satisfied all the conditions of proof requisite to establish the jurisdiction of
the Supreme Court at Hong Kong. It shews that, by “usage, sufferance or other
lawful means,” His Majesty has jurisdiction at Canton; that it in fact extends
to persons of the class to which Ibrahim belongs; that in the case of Ibrahim
himself it was exercised, so far as the preliminary examination went; and that
its exercise, both generally and in this particular case, was suffered by the
Chinese authorities holding office de facto, and that they made no objection.
Incidentally it disposes of a point taken in argument, that whatever
jurisdiction may have been ceded, agreed, or suffered by the Imperial Government
of China, it could not be deemed to persist by sufferance or otherwise since
recent changes in the constitution and form of government of China took place.
Even if such change had been proved, as it was not, or even if the Court could
under the circumstances in any way take judicial notice of a political change in
a neighbouring State, this evidence was sufficient to shew that no change in the
exercise of the jurisdiction and no diminution of the usage or the sufferance of
it had occurred. It was suggested that the Vice-Consul was not testifying to the
exercise of jurisdiction and sufferance thereof in fact, but was only expressing
his opinion that jurisdiction ought to extend to such a case as Ibrahim's, which
he said was the first case committed to the Supreme Court from Canton. The
judges of the Supreme Court, on the hearing of the points reserved to the Full Court, did not so take it,
neither do their Lordships, and were it not for the gravity and importance of
the case they would not think it necessary to pursue this question of
jurisdiction further.
Was Ibrahim a British-protected person
because “by virtue of the Foreign Jurisdiction Act or otherwise he enjoys His
Majesty's protection in China”? The words “or otherwise” must at least include
the operation of other statutes, Imperial or Indian, applicable to the person in
question, and the various legislative provisions referred to in the elaborate
and valuable judgments in the Court below amply establish that, after enrolment
and during service in the Indian Army, Ibrahim was a soldier of the Crown and
subject to military law while stationed at Shameen. That being so, their
Lordships think that it needs no express provision to entitle him to His
Majesty's protection. When the Crown lawfully enlists in its forces aliens along
with British subjects and requires of them the same service, loyalty, and
allegiance as are the duties of British enlisted subjects, it extends to them
the same protection in a foreign country, where all are serving together in the
armed forces of His Majesty. Their Lordships are clearly of opinion that Ibrahim
as of right “enjoyed His Majesty's protection” in China, and in virtue thereof
was subject also to the jurisdiction of the Supreme Court of China.
Lastly, under this head reliance was
placed on the words “and not otherwise” in art. V. (3.) of the Order. These
words do not import that, if a person is in fact a foreigner, he can only be
brought under the jurisdiction set forth in the Order “in the cases and
according to the conditions specified therein.” They are not words limiting
other provisions by which a person is clearly brought within the jurisdiction.
They mean that when a “foreigner,” as such, is to be brought within the
jurisdiction, he can be so dealt with only in the cases and according to the
provisions specified, but when a person is brought under the jurisdiction as “a
British-protected person,” and the fact that he is a foreigner is only
accidental, the limitation contained in the words “and not otherwise” in art. V.
(3.) does not apply.
Their Lordships think it unnecessary
further to pursue the points argued as to the necessity for proof of the Treaty of Tientsin,
1858; the validity of the proof of the Indian Army Act, 1911 (which, for reasons
hereinafter appearing, is so formal a matter as to be immaterial on the present
appeal); the conditions under which the Crown may enlist aliens in its Indian
forces; and the effect of the preamble and recitals in the China and Corea Order
in Council, 1904.
The second ground for this appeal is as
follows: Some ten or fifteen minutes after Subadar Ali Shafa was shot Major
Barrett, the officer commanding the detachment, who had been summoned from a
little distance, arrived at the camp. He found Ibrahim in custody and in bonds,
sitting on the step of the guard-room. “When I got up to Ibrahim,” says the
Major, “I said, ‘Why have you done such a senseless act?’ I said nothing else.
Did not threaten him in any way. I offered no inducement of any kind, nor did
anybody else to my knowledge or in my presence ….; when I spoke to accused I was
sorry for him because he had killed the subadar.” This last observation their
Lordships treat only as evidence of the way in which the quesiion was put,
tending to shew that it did not convey a command or inducement to Ibrahim of any
kind. In truth, except that Major Barrett's words were formally a question they
appear to have been indistinguishable from an exclamation of dismay on the part
of a humane officer, alike concerned for the position of the accused, the fate
of the deceased, and the credit of the regiment and the service. To this Ibrahim
replied in Hindustani, “Some three or four days he has been abusing me; without
a doubt I killed him.”
It was argued that Ibrahim's statement
was inadmissible, (a) as not being a voluntary statement
but obtained by pressure of authority and fear of consequences; and (b) in any case as being the answer of a man in custody to a
question put by a person having authority over him as his commanding officer and
having custody of him through the subordinates who had made him prisoner.
On this it becomes incumbent on their
Lordships to consider the rule of English criminal law applicable to such
circumstances. This somewhat exceptional duty arises because, by art. XXXV. (2.)
of the China and Corea Order in Council, it is provided that “subject to
the provisions of this Order criminal jurisdiction under this Order shall, as
far as circumstances admit, be exercised on the principles of and in conformity
with English law for the time being.” There are no provisions in the Order
material on this point as modifying or excluding the principles and practice of
English law, and their Lordships think that the matter may be justly treated as
if English criminal law and practice applied to the criminal jurisdiction of the
Supreme Court at Hong Kong. At the same time they are not to be understood to
decide that such law and practice are in all respects land particulars binding
on that Court, nor do they overlook in any way the necessary distinction that
must sometimes be drawn between the criminal procedure of a European country,
whose jurisprudence has a defined history extending over many centuries, and
that applicable to a British possession in the Far East, where a mixed and
fluctuating population is subject to the administration of the law by European
judges, whose duty it is to have regard alike to the principles of British
justice and to the necessities of local order. Nor do their Lordships fail to
observe that the words “so far as circumstances admit” may well be applicable to
such circumstances in the present case as the facts that the facilities for
formal proof of statutes passed and administrative orders made in various parts
of His Majesty's dominions cannot be as copious in Hong Kong as they are in this
country, and further that when, as in the present case, a force detailed for the
protection of Europeans resident beyond His Majesty's dominions in the midst of
a population, often turbulent and at the particular time disturbed, is itself
disturbed by such a crime as the murder of a subadar by a native private in the
ranks, such words may well cover and be designed to cover some necessary
departure from the formalities only as distinguished from the essentials of
English justice.
It has long been established as a
positive rule of English criminal law, that no statement by an accused is
admissible in evidence against him unless it is shewn by the prosecution to have
been a voluntary statement, in the sense that it has not been obtained from him
either by fear of prejudice or hope of advantage exercised or held out by a
person in authority. The principle is as old as Lord Hale. The burden of proof in the matter has
been decided by high authority in recent times in Reg. v. Thompson
[1893] 2 QB 12 , a case which, it is important to observe, was considered by the trial
judge before he admitted the evidence. There was, in the present case, Major
Barrett's affirmative evidence that the prisoner was not subjected to the
pressure of either fear or hope in the sense mentioned. There was no evidence to
the contrary. With Reg. v. Thompson
[1893] 2 QB 12 before him, the learned judge must be taken to have been satisfied with
the prosecution's evidence that the prisoner's statement was not so induced
either by hope or fear, and, as is laid down in the same case, the decision of
this question, albeit one of fact, rests with the trial judge. Their Lordships
are clearly of opinion that the admission of this evidence was no breach of the
aforesaid rule.
The appellant's objection was rested on
the two bare facts that the statement was preceded by and made in answer to a
question, and that the question was put by a person in authority and the answer
given by a man in his custody. This ground, in so far as it is a ground at all,
is a more modern one. With the growth of a police force of the modern type, the
point has frequently arisen, whether, if a policeman questions a prisoner in his
custody at all, the prisoner's answers are evidence against him, apart
altogether from fear of prejudice or hope of advantage inspired by a person in
authority.
It is to be observed that logically
these objections all go to the weight and not to the admissibility of the
evidence. What a person having knowledge about the matter in issue says of it is
itself relevant to the issue as evidence against him. That he made the statement
under circumstances of hope, fear, interest or otherwise strictly goes only to
its weight. In an action of tort evidence of this kind could not be excluded
when tendered against a tortfeasor, though a jury might well be told as prudent
men to think little of it. Even the rule which excludes evidence of statements
made by a prisoner, when they are induced by hope held out, or fear inspired, by
a person in authority, is a rule of policy. “A confession forced from the mind
by the flattery of hope or by the torture of fear comes in so questionable a
shape, when it is to be considered as evidence of guilt, that no credit ought to
be given to it”: Rex v. Warwickshall. (1783) 1 Leach , 263 It is not that the law presumes such statements to be untrue, but from
the danger of receiving such evidence judges have thought it better to reject it
for the due administration of justice: Reg. v. Baldry. (1852) 2 Den Cr C 430, at p 445 Accordingly, when hope or fear was not in question, such statements were
long regularly admitted as relevant, though with some reluctance and subject to
strong warnings as to their weight.
In the earlier part of the nineteenth
century there was strong judicial authority for admitting a prisoner's
statements, even though obtained by constables, who had him in custody, by
considerable insistence in the way of interrogation: Rex v. Thornton (1824) 1 Moo CC 27 ; Rex v. Wild (1835) 1 Moo CC 452 ; Reg. v. Kerr (1837) 8 C & P 176 ; and even so late as in Reg. v. Baldry (1852) 2 Den Cr C 430, at p 445 , a case decided on the rule as to hope and fear, Parke B. observes “by
the law of England, in order to render a confession admissible in evidence, it
must be perfectly voluntary, and there is no doubt that any inducement in the
nature of a promise or of a threat held out by a person in authority vitiates a
confession. The decisions to that effect have gone a long way: whether it would
not have been better to have allowed the whole to go to the jury it is now too
late to inquire, but I think there has been too much tenderness towards
prisoners in this matter. I confess that I cannot look at the decisions without
some shame, when I consider what objections have prevailed to prevent the
reception of confessions in evidence …. justice and commonsense have too
frequently been sacrificed at the shrine of mercy.” The law, however, was
considered to be fairly settled: see Reg. v. Cheverton (1862) 2 F & F 833 , Reg. v. Reason (1872) 12 Cox, CC 228 , Reg. v. Fennell (1880) 7 QB D 147, at p 150 , and the references collected in the note to Reg. v. Brackenbury. (1893) 17 Cox, CC 628 When judges excluded such evidence, it was rather explained by their
observations on the duties of policemen than justified by their reliance on
rules of law (e.g., Reg. v. Pettit (1850) 4 Cox, CC 164 ; Reg. v. Berriman (1854) 6 Cox, CC 388 , a case when the accused was not yet in custody).
In 1885 Reg. v. Gavin (1885) 15 Cox, CC 656 reopened these questions. In that case A. L. Smith J. excluded a
statement made to a constable, who questioned his prisoner in a way that
amounted to cross-examination. He laid it down that a constable has no right to
ask questions without expressly saying that the answers cannot be relevant
evidence. In 1893, Day J. (Reg. v. Brackenbury 17 Cox, CC 628 declined to follow this decision, in a case in which the question and
answer preceded the arrest, and Cave J. in Reg. v. Male (1893) 17 Cox, CC 689 rejected a statement made by a prisoner in custody to a constable who
had cross-examined him, saying merely that the police have no right to
manufacture evidence, though in 1896 (Reg. v. Goddard (1896) 60 JP 491 ) he appears to have concurred in the admissibility of very similar
matter. Two years later, Hawkins J. (Reg. v. Miller (1895) 18 Cox, CC 54 ) allowed the accused's answers to be proved against him, when he had
been cross-examined before arrest, saying that he did not expressly dissent from
Reg. v. Gavin (1885) 15 Cox, CC 656 , but that “every case must be decided according to the whole of its
circumstances,” but in 1898 (Reg. v. Histed (1898) 19 Cox, CC 16 ) he excluded the answers of a prisoner in custody, on the authority of
Reg. v. Gavin (1885) 15 Cox, CC 656 , saying that the constable was entrapping the prisoner and trying by a
trick to set a broken-down case on its legs again. Since then the current of
authority has run the other way. In Rogers v. Hawken (1898) 67 LJ (QB) 526 , a case of questions before arrest, a Divisional Court, consisting of
Lord Russell C.J. and Mathew J., judges not prone to lean against a prisoner,
held that the statement was admissible, and observed that “Reg. v. Male (1893) 17 Cox, CC 689 must not be taken as laying down that a statement of the accused to a
police constable without threat or inducement is not admissible. There is no
rule of law excluding statements made in such circumstances”; and in Rex v.
Best
[1909] 1 KB 692 the Court of Criminal Appeal (including Channell J.) held that “it is
quite impossible to say that the fact that a question of this kind has been asked
invalidates the trial,” adding that Reg. v. Gavin 15 Cox, CC 656 is not a good decision. Here, however, it is to be observed that the
actual decision was that under the proviso of s. 4 of the Criminal Appeal Act,
1907, the Court would not interfere in that case. It did not expressly declare
that statements of an accused, when in custody, in reply to a policeman's
questions, are always admissible evidence against him unless they are rendered
involuntary by reason of hope or fear induced by a person in authority. The
point has been before the Court of Criminal Appeal more recently. In 1905 (Rex
v. Knight and Thayre (1905) 20 Cox, CC 711 ) statements were rejected because obtained from the accused before
arrest by means of a long interrogation by a person in authority over him.
Channell J. adverted thus to the case of questions put by a constable after
arresting: “when he has taken any one into custody …. he ought not to question
the prisoner. … I am not aware of any distinct rule of evidence that, if such
improper questions are asked, the answers to them are inadmissible, but there is
clear authority for saying that the judge at the trial may in his discretion
refuse to allow the answers to be given in evidence.” The same learned judge in
Rex v. Booth and Jones (1910) 5 Cr App Rep 177, at p 179 in 1910 observes, “the moment you have decided to charge him and
practically got him into custody, then, inasmuch as a judge even cannot ask a
question, or a magistrate, it is ridiculous to suppose that a policeman can. But
there is no actual authority yet that if a policeman does ask a question it is
inadmissible; what happens is that the judge says it is not advisable to press
the matter”; and of this Darling J., delivering the judgment of the Court of
Criminal Appeal, observes the “principle was put very clearly by Channell
J.”
The learned trial judge in the present
case, in addition to the argument of counsel for the defence, had before him a
case decided in 1908 by the Full Court at Hong Kong, Rex v. Wong Chiu Kwai 3 Hong Kong LR 89 , in which the English authorities up to that time were very fully
examined. Before admitting the evidence of the appellant's statement he consulted Gompertz J., who had been a party to
that decision, and accordingly it is clear that he admitted the statement only
after the fullest consideration. The English law is still unsettled, strange as
it may seem, since the point is one that constantly occurs in criminal trials.
Many judges, in their discretion, exclude such evidence, for they fear that
nothing less than the exclusion of all such statements can prevent improper
questioning of prisoners by removing the inducement to resort to it. This
consideration does not arise in the present case. Others, less tender to the
prisoner or more mindful of the balance of decided authority, would admit such
statements, nor would the Court of Criminal Appeal quash the conviction
thereafter obtained, if no substantial miscarriage of justice had occurred. If,
then, a learned judge, after anxious consideration of the authorities, decides
in accordance with what is at any rate a “probable opinion” of the present law,
if it is not actually the better opinion, it appears to their Lordships that his
conduct is the very reverse of that “violation of the principles of natural
justice” which has been said to be the ground for advising His Majesty's
interference in a criminal matter. If, as appears even on the line of
authorities which the trial judge did not follow, the matter is one for the
judge's discretion, depending largely on his view of the impropriety of the
questioner's conduct and the general circumstances of the case, their Lordships
think, as will hereafter be seen, that in the circumstances of this case his
discretion is not shewn to have been exercised improperly.
Having regard to the particular position
in which their Lordships stand to criminal proceedings, they do not propose to
intimate what they think the rule of English law ought to be, much as it is to
be desired that the point should be settled by authority, so far as a general
rule can be laid down where circumstances must so greatly vary. That must be
left to a Court which exercises, as their Lordships do not, the revising
functions of a general Court of Criminal Appeal: Clifford v. The King-Emperor. (1913) LR 40 Ind Ap 241 Their Lordships' practice has been repeatedly defined. Leave to appeal
is not granted “except where some clear departure from the requirements of justice” exists: Riel v. Reg. (1885) 10 App Cas 675 ; nor unless “by a disregard of the forms of legal process, or by some
violation of the principles of natural justice or otherwise, substantial and
grave injustice has been done”: Dillet's Case. (1887) 12 App Cas 459 It is true that these are cases of applications for special leave to
appeal, but the Board has repeatedly treated applications for leave to appeal
and the hearing of criminal appeals as being upon the same footing: Riel's
Case (1885) 10 App Cas 675 ; Ex parte Deeming.
[1892] AC 422 The Board cannot give leave to appeal where the grounds suggested could
not sustain the appeal itself; and, conversely, it cannot allow an appeal on
grounds that would not have sufficed for the grant of permission to bring it.
Misdirection, as such, even irregularity as such, will not suffice: Ex parte
Macrea.
[1893] AC 346 There must be something which, in the particular case, deprives the
accused of the substance of fair trial and the protection of the law, or which,
in general, tends to divert the due and orderly administration of the law into a
new course, which may be drawn into an evil precedent in future: Reg. v.
Bertrand. (1867) LR 1 PC 520
Their Lordships were strongly pressed in
argument with the case of Makin v. Attorney-General for New South Wales
[1894] AC 57 , in which Lord Herschell L.C. delivered an elaborate exposition of the
principles on which a Court of Criminal Appeal should act. Although in that case
these observations are technically obiter dicta, since the Board held that the
evidence complained of at the trial had been rightly admitted, they are most
weighty in themselves, and they have since been adopted by the Court of Criminal
Appeal in Rex v. Dyson
[1908] 2 KB 454 , though with some later qualification. In Makin's Case
[1894] AC 57 , however, their Lordships had to determine the true construction of s.
423 of the New South Wales Act, 46 Vict. No. 17, which, in defining a strictly
appellate jurisdiction in criminal matters, provided “that no conviction or
judgment thereon shall be reversed, arrested or avoided in any case so stated,
unless for some substantial wrong or other miscarriage of justice.” It was held
there that to transfer the decision of the guilt of the accused from a jury, acting on oral
testimony, to an appellate tribunal, possessing that testimony only in writing,
cannot be said to involve no miscarriage of justice, and hence that a Court of
Criminal Appeal is not entitled to dismiss the appeal by retrying the case on
shorthand notes, or by holding that, if the trial judge had excluded the
evidence which he wrongly received, the verdict would probably have been the
same. In other words such a proviso is not to be construed as investing a
statutory Court of criminal review with the functions of the original trial
judge and jury. This is a very different matter from the duty of this Board in
advising His Majesty as to the exercise of his prerogative in relation to facts
as they are made to appear to this Board by admissible material. Even in Makin's
Case
[1894] AC 57 , however, reservation was made of cases “where it is impossible to
suppose that the evidence improperly admitted can have had any influence on the
verdict of the jury,” and this reservation is not to be taken as exhaustive. In
England, where the trial judge has warned the jury not to act upon the
objectionable evidence, the Court of Criminal Appeal under the similar words of
the Criminal Appeal Act, 1907, s. 4, may refuse to interfere, if it thinks that
the jury, giving heed to that warning, would have returned the same verdict –
Rex v. Lucas (1908) 1 Cr App Rep 234 ; Rex v. Stoddart (1909) 73 JP 348 ; Rex v. Norton
[1910] 2 KB 496, at p 501 ; Rex v. Loates (1910) 5 Cr App Rep 193 ; Rex v. Wilson (1911) 6 Cr App Rep 207 – or where evidence has been admitted inadvertently or erroneously,
which is inadmissible but of small importance – Rex v. Westacott (1908) 1 Cr App Rep 246 ; Rex v. Mullins (1910) 5 Cr App Rep 13 – or most unlikely to have affected the verdict: Rex v. Solomon. (1909) 2 Cr App Rep 80 Where the objectionable evidence has been left for the consideration of
the jury without any warning to disregard it, the Court of Criminal Appeal
quashes the conviction, if it thinks that the jury may have been influenced by
it, even though without it there was evidence sufficient to warrant a
conviction: Rex v. Fisher.
[1910] 1 KB 149 The rule can hardly be considered to be settled, but at any rate it
seems to go so far as to substitute “highly improbable” for “impossible” in Lord Herschell's reservation above
quoted.
Their Lordships think that the
jurisdiction which they exercise in appeals in Criminal matters involves a
general consideration of the evidence and of the circumstances of the case in
order to place the irregularities complained of, if substantiated, in their
proper relation to the whole matter. The facts of the present case must,
therefore, be stated. They are briefly as follows.
During the hot weather of 1912 the
sepoys of the 126th Baluchistan Regiment at Shameen lived and slept a great deal
in the open air. The camp was near the Central Avenue, shaded by trees and lit
by the electric light standards in the avenue. On the night in question the
native officers, including Subadar Ali Shafa, were sitting in chairs near the
road. Ibrahim and three other sepoys were not far off in a group playing cards.
The time was about 10.30 P.M. The subadar went up to them, accused them of
gambling, searched them, took away $3.80 of Ibrahim's money, and ordered them to
be confined to the lines. He abused Ibrahim with offensive language, against
which Ibrahim protested, and then returned to his chair. A little time
afterwards the sentry saw a man going into the camp itself to the place where
the men's rifles were kept, and gave an alarm. A shot was fired, and the
subadar, after calling to the guard to turn out, and walking a few steps, fell
dead, a bullet having passed through his body. Almost at once a man was seen a
few paces from the sentry, standing behind a tree and pointing his rifle in the
direction of the place where the native officers were sitting. This last
significant fact was elicited by the jury themselves. He was immediately seized
and proved to be Ibrahim. He had his own service rifle in his hand, identified
by its number. Five rounds, enough to fill one clip, were missing from his
bandolier. Four cartridges were in the magazine of his rifle, the bolt of which
was open; one, empty and still hot, was found on the ground. The rifle was
fouled from recent discharge. No one else with a rifle was seen outside the camp
when Ibrahim was seized.
This story, which did not depend at any
point on the evidence of one witness only, was amply corroborated in various
ways.
Beyond an indefinite suggestion that
Ibrahim had been instigated to commit this crime, which came to nothing, the
only attack on the witnesses was founded on discrepancies between them in
matters of detail, or on the suggestion that they had amplified their evidence
between the first trial, when the jury disagreed, and the second. It appears to
their Lordships that a clearer case there could hardly be, and that it would be
the merest speculation to suppose that the jury was substantially influenced by
the evidence of what Ibrahim said to Major Barrett. If not impossible, it is at
any rate highly improbable, that this should have been so, and when the
preponderance of unquestioned evidence is so great, their Lordships cannot in
any view of the matter conclude that there has been any miscarriage of justice,
substantial, grave, or otherwise. They will humbly advise His Majesty that the
appeal should be dismissed.
