Abortion Offences

Cases

The People (Attorney-General) v. Coleman.

[1945] IR 237
Court of Criminal Appeal.

 

SULLIVAN C.J. :
30 Nov.

The applicant, William Henry Coleman, was tried by a Judge of the Dublin Circuit Court on two counts in an indictment in which he was charged with offences against s. 58 of the Offences against the Person Act, 1861.
The first count upon which he was tried alleged that on the 15th March, 1944, with intent to procure the miscarriage of Judith Marjorie Bolton, he unlawfully used an instrument or other unknown means. The second count alleged that on the 22nd March, 1944, he committed the same offence. On both counts he was convicted and on each count he was sentenced to fifteen years penal servitude, the sentences to run concurrently.
The present application is for leave to appeal against conviction and sentence upon the grounds stated in the notice of application, which include insufficiency of evidence, the admission of evidence that was inadmissible, misdirection in law and in fact, and non-direction.
It will be necessary at a later stage when dealing with the arguments addressed to this Court to refer to certain parts of the evidence, but this application can be determined without discussing the evidence in detail.
A great body of evidence, both oral and documentary the taking of which occupied seven dayswas submitted to the jury, but the vital matter which they had to determine was whether they accepted the evidence of Mr. and Mrs. Mifsud or the evidence of the accused; and the evidence of the other witnesses was valuable mainly in so far as it assisted the jury to determine that matter.
If the evidence of Mr. and Mrs. Mifsud was accepted by the jury it established beyond question the guilt of the accused. Mrs. Mifsud’s maiden name was Judith Marjorie Bolton, she married Alphonsus Mifsud on the 14th April, 1944. Her evidence was that for some time prior to her marriage she had sexual intercourse with Mr. Mifsud, that in the month of March, 1944, she realised that she had become pregnant and decided to undergo an operation to terminate the pregnancy; that she borrowed from a friend the money necessary to pay for such an operation and, having discussed the matter with Mifsud, went with him to the residence of the accused on the afternoon of the 15th March; that the accused examined her, told her that she was pregnant, and arranged that he would operate upon her that evening; that she returned that evening with Mifsud and that the operation was performed by the accused in his consulting room while Mifsud remained in the waiting-room; that she returned by appointment on the 22nd March with Mifsud and was again operated upon by the accused; that she then returned to her mother’s house and remained there until the 24th March when she was removed to the Meath Hospital where she suffered a miscarriage.
Mifsud’s evidence was that on the 15th March he called at the accused’s house, consulted him about Miss Bolton’s pregnancy and its termination by an operation, and arranged to bring her to him for examination; that he returned with her that afternoon, and again on that evening, and again on the 22nd March, and on each occasion had remained in the waiting-room while she was with the accused in his consulting room; that he paid the accused £6 for the examination and £60 for the operation; that he again visited the accused on the 29th March when Miss Bolton was in hospital and asked him to return the fee that he had been paid for the operation, but he refused to do so.
The evidence of the accused was that Mifsud consulted him on the 15th March in reference to Miss Bolton’s condition and suggested an operation upon her, that he refused to perform the operation suggested, but proposed that he should examine her to ascertain if she was pregnant; that Mifsud did not accept that proposal and no appointment was made for such examination, that Miss Bolton did not enter his house on either the 15th or the 22nd March, and that he had never performed any operation upon her; that Mifsud visited him on the 29th March and told him of Miss Bolton’s miscarriage, and asked him not to tell the Guards of his (Mifsud’s) previous visit as they might seek to make him responsible for her condition; and that Mifsud’s account of the conversation at that interview was untrue.
The first ground upon which this application was based was that the learned Judge allowed counsel for the prosecution to ask questions of the accused in cross-examination tending to show that he was of bad character.
The Criminal Justice (Evidence) Act, 1924, s. 1 (f) provides that a person charged and called as a witness in pursuance of that Act shall not be asked, and, if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged unless(i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or (iii) he has given evidence against any other person charged with the same offence.
The learned Judge ruled that the nature and conduct of the defence was such as to involve imputations on the character of witnesses for the prosecution, and accordingly he allowed cross-examination of the accused directed to establishing his bad character. As that ruling is challenged as erroneous, it is necessary to refer to the evidence upon which it was based.

In the course of her cross-examination, Mrs. Mifsud was asked the following questions:[Reads questions asked on the first and second day of the trial]. Mr. Mifsud was asked:[Reads questions asked on the second day]. That cross-examination imputed (1) that Mifsud had performed an illegal operation on Miss Bolton; (2) that Mr. and Mrs. Mifsud conspired to charge the accused with a crime of which, to their knowledge, he was innocent; (3) that prior to her marriage, Mrs. Mifsud had been using contraceptives contrary to the teaching of the Church to which she belonged;(4) that the Mifsuds had married with the object of defeating the ends of justice.
This Court accepts the view expressed by Viscount Simon L.C.and assented to by Lord Thankerton, Lord Russell of Killowen, Lord Wright, and Lord Porterin Stirland v. The Director of Public Prosecutions (1) that the word”character” in s. 1 (f) of the Criminal Evidence Act, 1898, refers to moral disposition as well as to general reputation, and this Court gives the same meaning to that word in s. 1 (f)of the Criminal Justice (Evidence) Act, 1924; and giving it that meaning this Court is satisfied that the imputations in question are imputations upon the character of Mr. and Mrs. Mifsud.
It has been held that an imputation made by the defence that a witness for the prosecution has committed the crime with which the accused is charged is sufficient to deprive the accused of the protection of the section: R. v. Marshall (2); R. v. Hudson (3); Attorney-General v. Campbell (4). It was, however, contended that, as Mifsud was admittedly an accomplice if the accused committed the crime with which he was charged, it was no imputation on Mifsud’s character to suggest that the crime had been committed by him. No authority was cited in support of that contention and this Court does not accept it. It was further contended that the imputations that Mifsud had performed the operation in question and that he had conspired with his wife to charge the accused with having performed it, were necessitated by the proper conduct of the defence; and in support of that contention counsel relied on the fourth proposition stated by Viscount Simon in Stirland’s Case (5)that “an accused is not to be regarded as depriving himself of the protection of the section, because the proper conduct of his defence necessitates the making of injurious reflections on the prosecutor or his witnesses.” As illustrating that proposition, Viscount Simon refers to R. v. Turner (6), in which case it was held that, as on a charge of rape it is essential for the prosecution to establish (1) carnal knowledge, and (2) absence of consent, questions put to the prosecutrix in cross-examination suggesting that she had not merely consented to intercourse, but had been guilty of gross indecency on the same occasion were directed to the proof of her consent, and did not put the character of the prosecutrix in issue.
There is no analogy between that case and the present case. The charge against the accused is that on two occasions in his consulting room he used an instrument with intent to procure the miscarriage of Miss Bolton. The imputation made is that Mifsud on some other occasion at some other place, did a similar act with the same intent. No evidence was tendered on behalf of the accused to support that imputation, and even if such evidence had been adduced and had been admitted by the learned Judge and accepted by the jury, it would not necessarily have established a defence to the charges upon which he was being tried. This Court is of opinion that the proper conduct of the defence did not necessitate the making of any of the imputations in question, and that the ruling of the learned Judge was right.
The second ground that was relied on in support of this application was that a certain document, Exhibit 8, which was put in evidence on the cross-examination of the accused was inadmissible evidence on the grounds:(1) that it was privileged from production; (2) that it was not evidence of bad character; and (3) that it came into existence subsequent to the date of the offences charged.
This document was admittedly written by the accused and it was in his possession when he had an interview with his wife in Mountjoy Gaol where he was on remand awaiting his trial. During that interview it fell to the ground in circumstances as to which there was a conflict of testimony between the accused and a warder who was present on the occasion. It was picked up by the warder and subsequently given by him to the chief warder, by whom it was given to the Governor.
It was contended that this document was privileged (1) as a document that had been written by the accused for the purpose of submission to his solicitor, or (2) as a communication between the accused and his wife. The learned Judge having read it held that it was an attempt to procure subornation of witnesses, and this Court is satisfied that it cannot reasonably bear any other meaning. That being so, even if it had reached the solicitor, it would not be a privileged communication as it contemplated and suggested the commission of a crime: R. v. Cox and Railton (1).

As to the second ground upon which privilege was claimed, it has been decided in several cases that an oral communication between husband and wife overheard by a third person can be proved by such person: R. v. Smithies (1); R. v.Simons (2); R. v. Bartlett (3), and it would seem that these cases have not been over-ruled. On the same principle the document in question is, in the opinion of this Court, admissible in evidence. In the case of R. v. Pamenter (4) upon which Mr. Lavery relied, no authorities were cited, and Kelly C.B. had, apparently, some doubt that his ruling was correct. In Shenton v. Tyler (5) the Court of Appeal in EnglandSir Wilfrid Greene M.R., Finlay and Luxmoore L.JJ.after an exhaustive examination of all the relevant authorities came to the conclusion that there never had been a rule at common law that communications between husband and wife during the marriage are privileged. It was contended that this conclusion was erroneous, but it is not necessary to consider that argument as this Court has decided that the document is admissible in evidence on another ground.
The other grounds upon which the admissibility of the document has been challenged can be disposed of very briefly. In view of the opinion that this Court has expressed as to the meaning that should be attributed to the document it was clearly evidence of bad character, and the fact that it came into existence subsequent to the date of the offences charged does not affect its admissibility as such evidence: R. v. Wood (6).
The third ground advanced in support of this application was that, as the Mifsuds were accomplices, and as there was no corroboration of their evidence, the jury should have been warned in the strongest terms of the danger of convicting upon their evidence; that the warning given by the learned Judge was inadequate, and that the learned Judge’s charge was in that respect unsatisfactory.
At the beginning of his charge, the learned Judge did warn the jury of the danger of convicting on the uncorroborated testimony of accomplices, and he, quite properly, told them that they were entitled to act on such testimony if, realising the risk and in the light of the solemn warning that he was giving of the danger of so doing, they were convinced beyond all reasonable doubt that such testimony was true and could be relied on. At a later stage of his charge he told the jury that if they were satisfied that the Mifsuds believed certain statements which they said were made to
them by the accused to the effect that if the pregnancy was not terminated, Mrs. Mifsud’s life might be imperilled, and if they were satisfied that the Mifsuds did not believe that they were committing a crime in acting as they did, then they would be justified in holding that the Mifsuds were not accomplices and in regarding them as witnesses of credit. That direction was erroneous, and when, after the jury had retired, objection was taken to it by Mr. Casey, the learned Judge recalled the jury and withdrew what he had said, and directed them to regard the Mifsuds as accomplices, and repeated the warning that it was dangerous to act on their evidence. In these circumstances this Court is satisfied that on this matter the charge of the learned Judge was quite adequate.
The fourth ground on which this application was based was that a document entitled “The Secret” was admitted in evidence on cross-examination of the accused. It was contended (1) that this document was inadmissible as it did not affect the character of the accused, and (2) that the jury were invited by counsel for the prosecution to regard it as an admission by the accused that he had performed illegal operations on two women, and were told by the learned Judge that they might so regard it. It is a type-written document, admittedly composed by the accused, and it was found by the Guards in his desk at his house. It is in form a story, told in the first person by an expert in the administration of X-ray treatment, who had been consulted by two maiden sisters, at first as to the removal of superfluous hair, but subsequently as to the termination of pregnancy by operation; and it told how the narrator successfully performed an illegal operation upon each of them. The accused said that it was a story written by him at the request of the press representatives of some English newspapers, and that it was fiction. Counsel for the prosecution suggested in cross-examination that it was fact, and that it referred to two sisters whose names were recorded on files kept by the accused as patients whom he had treated for superfluous hair only, but on whomit was suggestedhe had also performed illegal operations. This suggestion was based on the fact that certain matters recorded on the files corresponded with some of the matters mentioned in the story. The learned Judge in his charge when dealing with the several matters that were put to the accused in cross-examination as affecting his credit referred to “The Secret”and to the files recording the treatment of the two sisters, and said to the jury: “You will have to make up your minds what view you take of that document. . . . The prosecution say it is not fiction based on fact, but fact. If it is not fiction then it is fact. Then in that particular document, Coleman, if he is the first person referred to, performed the two illegal operations on these two sisters.” In the opinion of this Court, there was no evidence that would justify the jury in coming to the conclusion that the document was not fiction, but a record of fact and an admission by the accused that he had committed two criminal offences, and the learned Judge should have so directed the jury. But this Court is not prepared to say that the document was not admissible as tending to discredit the accused as its author. The reference that the learned Judge made to it when he recalled the jury was probably intended as a withdrawal of the view that he had previously expressed that the document might be regarded as an admission, but, if so, he did not make it clear to the jury that it was so intended.
The fifth ground advanced in support of this application was that in the course of his charge, the learned Judge read to the jury as relevant for their consideration, a passage in Parry on Criminal Abortion. It is material to consider the context in which that passage was read. The learned Judge was discussing the argument of counsel for the accused that, in view of the previous history of the accused, it was unlikely that he would commit the offences for which he was then on trial. The learned Judge said:
“I have to deal now with the improbability of Mr. Coleman acting, as the State say he did, on this occasion, having regard to his history and his alleged persecution by the police. As a criminal, in connection with his activities, the moral naturally leads to this: If he is guilty, does not that consideration apply with similar force: in other words, that, having been charged in 1933 with a charge of this kind, he was tried, he was convicted of arson, and, having been further charged in 1937 and having been convicted, and subsequently having it quashed by the Court of Criminal Appealwould not that be such an experience as would absolutely deter him from carrying on the business of a professional abortionist? That argument seems to be a strong argument in favour of the accused. It is only right, I should put it with equal force in his favour, when it can be done in his favouras the burned child dreads the fire why should any man in these circumstances indulge in these practices? Now, that is a matter you will have to give full consideration to and consider to the best of your ability.
There is a passage in Parry on Criminal Abortion which is of some interest in connection with this particular matter. On page 89, under ‘General Remarks,’ the author writes:’There are men whom no amount of punishment seems able to deter from the repeated procuring of abortion. William Hollis was convicted of procuring criminal abortion and sent to ten years penal servitude. Immediately he was released he repeated the offence, and as death ensued in his victim, he was sentenced to be hanged. This was commuted to penal servitude for life. He was released after twenty years at the age of seventy-four. He at once returned to his old methods, was again tried, and sentenced once more to penal servitude for life. Such a record is almost incredible.’
It is almost incredible. I am not putting it in any other sense, than that such a case may be one in a million, but the circumstance is, that it occurs in the book that was read by Mr. Coleman, and against the argument I put to you that his previous convictions should prevent him indulging in these practices, if he ever did indulge in them.”
These passages in the charge are open to objection on more than one ground. The learned Judge was not entitled to read to the jury any passage from the book in question. The passage that he read directed the attention of the jury to the fact thatin the opinion of the writera person who has been convicted of procuring abortion and sent to penal servitude may persist in committing that offence, and he suggested that the jury might take that into account when considering the argument “that Coleman’s previous convictions should prevent him indulging in these practices, if he ever did indulge in them.” The jury may, not unreasonably, have understood from this that on some previous occasion the accused had committed an offence of a similar nature to that with which he was then charged. Reference had been made to two previous occasions on which he had been charged with a similar offence, and although the jury were told that one of those charges had not been proceeded with and that a conviction upon the other charge had been set aside by this Court, they may not have appreciated that a charge that has not been proceeded with, or a conviction that has been set aside, does not afford any indication of guilt. As these charges had been referred to during the trialin the first instance by counsel for the defence in his cross-examination of Mrs. Mifsudit was essential that the jury should be told that, of the offences so charged, they must regard the accused as innocent.
As to the remaining grounds upon which counsel for the applicant relied, it is sufficient to say that none of them has been established to the satisfaction of this Court, and that the suggestion that the case for the defence was not put to the jury by the learned Judge is quite unfounded.
For the reasons that have been stated in considering the fourth and fifth grounds, this application will be granted; the hearing of this application will be treated as the hearing of the appeal, and the convictions on both counts set aside.
As there was admittedly sufficient evidence to support a conviction on each count, the Court will direct that the accused be retried.