1. Appeal against conviction and sentence for complicity in wilful homicide under the Criminal Code. (Para 1 , 2 )
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1947 Supreme(SC) 14
Privy Council At Malta
Sir John Beaumont, Sir Madhavan Nair , Lord Du Paecq, Lord Uthwatt, Justice Lord Thankerton, JJ.
Joseph Connell -Appellant
Versus
The King -Resopndent
Privy Council Appeal No. 38 of 1946
Decided On : 05-03-1947
Advocates Appeared:
Burchells, Norton Rose Greenwell and Co., King, A.G. Mano, Frank Gahan , H.O. Leon
Burchells, Norton Rose Greenwell and Co., King, A.G. Mano, Frank Gahan , H.O. Leon
A conviction must be quashed if the trial judge's summing up excludes the defense's evidence, treats contested confessions as established facts, or assumes the commission of the crime without requiring the prosecution to prove it beyond reasonable doubt, as this violates the principles of a fair trial.
Headnote:(A) Criminal Code - Arts. 43, 44, 218, 567, 630, 670 - Complicity in wilful homicide - Summing up by the trial judge - Failure to present the defense's evidence to the jury - Omitting the accused's denials and evidence in his favor from the summing up is a contravention of the elementary principles of fair trial and the due administration of justice, involving a substantial miscarriage of justice. (Para 8)
(B) Confessions - Trial judge treating alleged confessions as having been made, rather than leaving the question of whether they were proved beyond reasonable doubt to the jury, constitutes a serious error. (Para 10)
(C) Burden of Proof - In a trial for murder, the fact of murder must be established beyond reasonable doubt; treating the crime as already established and focusing primarily on the proof of intent is a serious defect in the conduct of the trial. (Para 11)
Facts of the case:
An appellant was convicted of complicity in the wilful homicide of his wife and sentenced to death. The prosecution alleged that the appellant had incited and commissioned two other individuals to commit the murder. The appellant denied all charges, asserting that his interactions with the co-accused and other witnesses were for unrelated purposes and that he never made the alleged confessions. The trial was conducted jointly with two other accused persons.
Findings of Court:
The summing up by the trial judge was found to be fundamentally defective. The judge failed to mention any of the appellant's denials or the evidence presented for the defense. Additionally, the judge treated contested confessions as facts and assumed the commission of the murder as an established fact throughout the trial and summing up, rather than requiring the prosecution to prove the act of murder beyond reasonable doubt.
Issues: Whether the trial judge's summing up, by excluding the defense's case, treating contested confessions as proven, and assuming the fact of murder, deprived the appellant of a fair trial and resulted in a substantial miscarriage of justice.
Ratio Decidendi: A fair trial necessitates that the jury be presented with all evidence, including the defense's version of events. The omission of the defense's case from the summing up, the treatment of contested confessions as established facts, and the assumption that a crime was committed without requiring proof beyond reasonable doubt are fundamental errors that justify quashing a conviction.
Result: Conviction quashed.
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2. The trial judge's summing up was defective for excluding the defence, assuming confessions were made, and treating the murder as established, causing a miscarriage of justice. (Para 5 , 6 )
3. What is the probative value of an admission made by one accused in a joint trial under the Criminal Code of Malta?
Under Article 630, an admission by one of the accused is evidence only against that specific individual and has no probative force regarding other accused persons. (Para 7 )
Lord Thankerton:-
This is an appeal in forma pauperis by special leave from a conviction and sentence, on 9-10-1945, of the appellant by His Majesty's Criminal Court for the Island of Malta and its Dependencies (Sir George Borg C. J., and E. Ganado and W. Harding, JJ.) sitting with a jury, whereby the appellant was convicted of complicity in the wilful homicide of his wife, Carmela Connell, and was sentenced to death, under Arts. 43, 44 and 218 of the Criminal Laws for the Island of Malta and its Dependencies, which may be conveniently referred to as the Criminal Code.
[2] The appellant was tried together with two other persons, namely John Connell the (appellant's brother) and Edward Burnell on an indictment charging John Connell and Edward Burnell with maliciously and with intent to kill causing the death of Carmela Connell, the appellant's wife, between 10th and 11-9-1944, and charging the appellant with commissioning and inciting the other two accused to commit the crime. The joint trial was provided for by Art. 567 of the Criminal Code, but separation of trials may be ordered by the Court under Art. 670, on the application of the public prosecutor, on the ground of inconvenience. Their Lordships cannot help feeling some regret that that course was not taken in the present case, as some of the defects to which it will be necessary to call attention might well have been avoided thereby.
[3] The evidence for the prosecution against the appellant may be summarised as follows:
"(1) That the appellant's wife was found dead in the sea on 11-9-1944 by Golf Tat-tafal, and that her injuries were consistent with her having fallen down the cliff there.
(2) That the appellant had promised a man of bad character named Mercieca £70 if he would murder the appellant's wife.
(3) That be had approached another man of bad character named Joseph Attard, and offered him money if he would give a thrashing to an unnamed woman.
(4) That both in the case of Meroieca and Joseph Attard the appellant in the first place asked the man in question if he would give a thrashing to a man, and, then, in the case of Mercieca specifically asked him to murder his wife, and make a plan with him by which Mercieca was to take the appellant's wife under a pretext of meeting the appellant and then to throw her down a bastion.
(5) That Mercieca, in accordance with the plan, took out the appellant's wife for the apparent purpose of murdering her, but that instead he had sexual intercourse with her and gave her his sandals, and that subsequently, although again requested by the appellant to murder the latter's wife, Mercieca refused to do so.
(6) That the appellant was seen in company with John Connell and Edward Burnell and also with Mercieca, on various days shortly before the appellant's wife was found dead.
(7) That the appellant admitted to Superintendent Calleja that, after he had heard that Mercieca had sexual intercourse with his wife he made up his mind to do away with her, and that, prior to his hearing this, he had only half a mind to do so, and that the appellant did not dispute this admission when it was reported by Superintendent Calleja in the presence of the appellant, Inspector Agius and Inspector Attard although he refused to repeat it himself when asked to do so.
8. That the appellant admitted to Sergeant Fenech that he had three times attempted to rid himself of his wife and that on the third occasion the plot materialised.
(9) That a pair of sandals was found in the appellant's dwelling house.
10. That the appellant on arrest was found to have on his person the sum of about £62.
11. That the appellant admittedly had a mistress who at the time when the appellant's wife died was with child, and that the appellant might have been its father."
The prosecution had further alleged that the appellant and the other two accused went in a truck borrowed by the accused from Joseph Sehembri to choose the place for the crime a few days before it was committed. No evidence wa
