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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V10) 1 CLR 92
1916 December 16
[TYSER, C.J. AND FISHER, J.]
POLICE
v.
MICHAILI YORGHO KATSIAMALI.
CRIMINAL PROCEDURE-ADMISSION IN COURT RY ADVOCATE FOR ACCUSED.
The appellant was charged before a Magisterial Court with (1) stealing a goat value £1 and (2) being in possession of a goat skin reasonably suspected of being stolen property. To these charges he pleaded not guilty and elected to be dealt with summarily. Before any evidence was called the advocate for the defence said: "We admit possession, "but that animal is our own property."
No evidence of possession was given and the Court convicted the appellant on the second charge.
HELD: That the statement of the advocate could not be taken as evidence, or equivalent to evidence, of possession.
Triantaphyllides for the Appellant.
There was no evidence upon which the Appellant could be convicted. After the Appellant had pleaded I said to the Magistrate in English: "We admit possession but that animal is ours." Even if that statement is to be taken as evidence the conviction cannot be supported.
The Assistant King's Advocate for the Prosecution.
Judgment: THE CHIEF JUSTICE: In this case the point made for the defence is that an admission of fact made by the Advocate of a person at the hearing of a criminal charge is not evidence on which he can be convicted.
For the purposes of this judgment it is sufficient to say that the Appellant was charged and convicted with being in possession of a goat's skin reasonably suspected to be stolen property. The only evidence of possession was a statement made at the trial by the Advocate for the defence, in which he said "We admit possession, but say that the "goat was ours." The term "admission" is somewhat ambiguous. It may mean an admission made by a party to any action, which may always be proved by evidence, or it may mean an agreement to dispense with evidence. That is the sense in which it is here used. The law on this subject is not without difficulty. Speaking generally the law of evidence is the same in criminal and civil suits [R. v. Francis, 2 C.C.R., 128, 133, R. v. Watson, Roscoe's Criminal Evidence (12th Edition) p. 1.]
In Stephen's Digest of the Law of Evidence the law is stated in the following terms: Art. 60. "No fact need be proved in any "proceeding which the parties thereto or their agents agree to admit "at the hearing, or which they have admitted before the hearing and "with reference thereto, or by their pleadings. Provided that in "a trial for felony the prisoner can make no admissions so as to dispense "with proof, though a confession may be proved as against him, "subject to the rules stated in Arts. 21-24."
Arts. 21-24 state the rules as to the necessity of an admission or confession being voluntary, and as to when admissions and confessions are deemed voluntary. These rules refer to admissions to be proved and not to admissions made for the purpose of dipensing with proof.
In Halsbury's Laws of England, Vol. 9, p. 386, it is stated in Art. 750: "As regards the manner in which facts relevant to the issue "must or may be proved there is in general no difference between "civil and criminal cases, but there are some particular points of "difference arising out of the special nature of criminal proceedings. "Thus, in criminal proceedings no admissions preliminary to the "trial can ordinarily be made by the Defendant or his advisers so as "to dispense with oral evidence and strict proof of facts necessary "to be proved. The plea of guilty at the trial is a formal and conclusive admission of the offence charged in the indictment, and "dispenses with the necessity of proving the facts alleged therein. When "the plea is not guilty, in cases of misdemeanour the Defendant or "his counsel may at the trial make other admissions of facts; but "in cases of felony no such admissions can be made. Therefore, "if the Defendant pleads not guilty on a charge of felony, oral evidence "is indispensable, whereas if he pleads not guilty on a charge of misdemeanor, such evidence may by agreement be dispensed with in "certain cases."
The following authorities are cited in the footnote in support of these propositions in the Laws of England: R. v. Thornhill (1838), 8 Carrington & Payne, 575, where, in a prosecution for a misdemeanor (perjury), the legal advisers on both sides had agreed before the trial that formal proofs should be dispensed with and that part of the case for the prosecution should be admitted, but Lord Abinger, C.B., said: "In a criminal case tried on the Crown side of the Assizes I cannot "allow any admission to be made on the part of the Defendant, unless "it is made at the trial by the Defendant or his counsel." [See Philipps on Evidence, 10th Edition, VOL. I., 391; R. v. Foster (1836), 7 Carrington & Payne, 495.]
The case of R. v. Thornhill is not reported in the Revised Reports and the footnote given above, and the note in Roscoe's Criminal Evidence are the best reports of the case that I can find. Neither is R. v. Foster in the Revised Reports the only report I find is in Roscoe on Criminal Evidence set out below.
R. v. Morphew, 15 Revised Reports, 366, is a case of misdemeanor in which a material witness for the Crown who was about to leave the country was by consent examined on interrogatories.
In Archbold, Criminal Pleading and Evidence, 24th Edition, p. 385, it is said: "The Court will not allow a criminal case to be tried on "admissions by the solicitors on both sides, nor unless the admissions "are made at the trial by the Defendant or his counsel." R. v. Thornhill is cited as an authority for this proposition.
In Roscoe's Criminal Evidence (12th Edition), p. 120, the law is stated as follows: "Where there were two prosecutions against "the prisoner for felony, and his counsel offered to admit the evidence taken on the first trial, as given in the second; Patteson, J., "doubted whether that could be done, even by consent, in a case "of felony, but the learned Judge directed the witnesses to be re-"sworn, and read their evidence over to them from his notes, R. v. "Foster, 7 Carrington & Payne, 495. In cases of misdemeanor, "evidence may be taken by consent. Per Patteson, J., R. v. Foster "supra. Where, however, on an indictment for perjury, it appeared "that the attorneys on both sides had agreed that the formal proof "should be dispensed with, and part of the prosecutor's case admitted, "Lord Abinger, C.B., said: I cannot allow any admission to be made "on the part of the Defendant, unless it is made at the trial by the "Defendant or his counsel. The Defendant's counsel declining "to make any admission, the Defendant was acquitted." R. v. Thornhill, 8 Carrington & Payne, 575. Philipps on Evidence is not in the Law Library, but the cases set out above are those relied on in Halsbury's Laws of England. In R. v. Foster evidence by consent was not admitted in a case of felony, but the case is no authority for saying such evidence would be admitted in other criminal proceedings.
Ex parte Bottomley, 1909, 2 K. B., 14 is similar to R. v. Foster. See also R. v. Bertrand, L.R., 1, P.C., 520.
The result of the text books seems to be that admissions for the purpose of dispensing with proof may be made, except on trials for felony, and that such admissions may be made by their parties or their agents. But in criminal proceedings no admissions preliminary to the trial can ordinarily be made by the defendant or his advisers so as to dispense with oral evidence and strict proof of the facts.
The distinction drawn between felony and misdemeanor is not supported by any decided case and seems unreasonable.
The exception seems unreasonable because as Stephen, J., says in the introduction to his Digest of the Criminal Law (1st Edition): "Now that forfeiture for felony is abolished there is no real difference "between felony and misdemeanor." To quote the learned Judge: "The general classification of crime, as treason, felony, and misdemeanor, is extremely inconvenient and capricious. The severest "of secondary punishments (imprisonment for life and forfeiture "of goods) is inflicted for the misdemeanor of misprision of treason. "The misdemeanor of conspiring to murder subjects an offender to "ten years penal servitude, and many misdemeanors are punishable "by penal servitude for seven years. All common misdemeanors are "put by statute upon the same footing as felonies in regard to the "summary arrest of the offender (see, e.g., the Larceny Act, 24 and 25, "Vict. c. 96, Sec. 103), and this removes the only substantial distinction "between the two classes of offences."
There is no authority nor reason for there being a difference in the trial of felonies and other criminal offences and if it were necessary to decide the matter I should find a difficulty in following the proposition that there is such a difference.
As to admissions made prior to the trial it appears from R. v. Thornhill that they can always be withdrawn before the trial, and that the Judge will not ordinarily act on them unless renewed at the trial.
The law as stated in Oke's Magisterial Synopsis, 12th Edition, Vol. II., p. 907, is as follows:-
"Admissions of facts cannot be made for an accused by his counsel "or attorney; but if it is desirable to admit formal or other matters "with a view to shorten the inquiry or save expenses, the accused "may admit the fact during any stage of the examination, and such "admission should be placed on the face of the depositions in the "same way as voluntary observations during the examination may "be made and taken down."
The power to make admissions is one of the differences between criminal and civil trials. It is not so much a difference in the law as to the admissibility of evidence as a difference in the rules of procedure. In civil actions "the admissions of advocates bind their clients "in all matters relating to the progress and trial of the action." Taylor on Evidence, Vol. I. (7th Edition, Sec. 772). In civil actions, issues are settled out of Court; the admissions are relied upon to ascertain the points at issue for trial. In criminal trials there is no issue to be tried until plea made in open Court when the prisoner is brought before the Court.
The question before us now is whether a solemn admission made by the advocate for the defence at the trial of a misdemeanor is evidence against the accused.
It as evident from Clause 196 of the Cyprus Courts of Justice Order, 1882, that that Order in Council contemplates an admission in criminal cases, but it does not make the consent of a prisoner a cure for an irregularity.
As to the admission made at the trial by the advocate, the account of R. v. Thornhill in Roscoe's Criminal Evidence is, if not a direct authority, an authority from which one can infer that the learned Judge would have accepted such an admission. For it states that "the Defendant's counsel declining to make any admission, the "Defendant was acquitted." From this one may infer that it might have been otherwise if the defendant's counsel had been willing to repeat the admission made out of Court. This is the view which is apparently taken of the case in Archbold. But the decision requires reconsideration here in view of the fact that in this country the advocate may use a language that his client does not understand.
In absence of authority to the contrary one may assume that the law as to evidence in criminal and civil cases is the same, or, at least, that the law in criminal cases is not more lax than in civil cases. Now in civil cases the question of how far a client is bound by the statement of his counsel at the trial has been discussed in College v. horn, 3 Bingham, 119, and the highest dictum in favour of such statement having a binding effect is that of Burrough, J., who was of opinion that if the Plaintiff was in Court, heard what his counsel said and made no objection, that the client would be bound by the statement. The case is authority for saying that if it is not proved that the client was present when the statement was made he is not bound by it.
This is not a case of the client being bound by the statement of his advocate, but a question whether such statement is evidence against the client. The principle, however, which governs the two questions is the same. In Criminal Law no such statement could be binding so as to be incapable of being disproved. It would, in my opinion, be most unsafe to hold that such a statement is evidence at all events where it is not shewn that the client heard and understood the statement. That is not shewn in this case. Therefore the statement of the advocate cannot be taken as evidence against the client.
PUISNE JUDGE: I agree.
Conviction quashed.