McDonald, Conter and O'Hearn v. The King

Harris C.J. He held that the admission of counsel, on its face and as understood at the trial, meant that the evidence of Wheeler was to be admitted against all the defendants; that the authorities show that the consent of the accused or his counsel is binding in such cases; and the evidence of Wheeler given on the two previous trials was properly received and binding on all the defendants.

He further stated:

We think it is proper to point out that the suggestion that the admission of the evidence was only intended to be for the purpose of making it available as against the particular defendant or defendants who had been on trial on the previous occasion is not in our opinion the meaning of the admission which contains no such limitation.

If that view had been maintainable it would have involved a consideration of various questions and among others as to what if any difference there was between the evidence of Captain Wheeler in the two cases and whether or not these differences affected all or any of the issues. It was strongly argued that these differences were immaterial and it was pointed out that even if they were material, none of Wheeler's evidence affected the question of the guilt, if any, of the accused under the third count of the indictment. The guilt of all the accused under that count was clearly established by other evidence and was in no way affected by the admission of Wheeler's evidence. This seems to be so, and as the same punishment was awarded upon each of the convictions to run concurrently it seems to follow that no injustice would have been done any of the prisoners even if we had reached a different conclusion as to the effect of the admission of Captain Wheeler's evidence.

S.C.R.]

The grounds of dissent of Mellish J. were " that the evidence given by Wheeler in the previous trial of McDonald, Conter and Petrie was inadmissible in this trial as evidence against O'Hearn," and " that the evidence given by Wheeler in the previous trial of O'Hearn was inadmissible in this trial as against Conter, McDonald and Petrie;" that s. 999 of the Criminal Code is clearly intended to deal with evidence given on the former trial of the same defendant and the admission of counsel aforesaid was therefore " wholly insufficient to allow of the reception of evidence taken on the previous trial of one party as against a different party on a later trial;" further, that " there is no proof that the statements put in were in fact the evidence of Captain Wheeler and there is no consent that they were."

Carroll J. concurred with the reasons of Mellish J., and added some further reasons, including the ground (in connection with s. 999) that the evidence was not signed by the judge "before whom the same purports to have been taken;" that this fact of non-signature, apart from all other considerations, made all this-evidence non-admissible.

By the judgment of the Supreme Court of Canada, now reported, the appeal was allowed and a new trial ordered as regards the three appellants.

CouRT.-In our opinion one ground upon which the appellants are entitled to a new trial is that taken by Mellish J., in his dissenting judgment, namely, that there is no proof that " the statements put in were in fact the evidence of Captain Wheeler and there is no consent that they were." The admission of counsel for the appellants rendered unnecessary the establishment, by the prosecution, of the various facts required by section 999 of the Code to be proved before the evidence of Captain Wheeler could have been admitted, but that admission did not, in any way, identify the document which was read to the jury, as the evidence given by him on the former trial.

It is true that the deposition of Captain Wheeler, as admitted, does not, in terms, incriminate the appellant Conter.

The deposition is, however, very important on the point that the goods which the appellants were charged with having assisted or having been otherwise concerned in importing, unshipping, landing or removing were goods liable to forfeiture under the Customs Act; that was an essential element of the charge and of the proof, and although Conter may have been connected with it only through other evidence, it is not possible to appreciate how far the depositions of Captain Wheeler on the main charge concerning the character of the goods imported may have influenced the jury in its findings.

Our view on the above point makes it unnecessary to pass upon the other ground of dissent, to wit: " that the evidence given by Wheeler in the previous trial of McDonald, Conter and Petrie was inadmissible in this trial as evidence against O'Hearn " and " that the evidence given by

Wheeler in the previous trial of O'Hearn was inadmissible in this trial as against Conter, McDonald and Petrie." We wish only to add that, should similar circumstances happen at the next trial and Wheeler's deposition properly and legally identified be tendered, it would be most advisable for the trial judge to warn the jury that each deposition should be considered as evidence only against the accused in whose former trial such deposition purported to have been taken.

The appeal is allowed and a new trial is ordered as regards the three appellants.

Appeal allowed.

Patterson.

Prosecutor) and D. A. Cameron (Solicitor for the Department of Inland Revenue of Canada).

S.C.R.]