3PLR – THE KING V. LOVEGROVE.

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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THE KING

V.

LOVEGROVE.

COURT OF CRIMINAL APPEAL

[1920] 3 K.B. 643

1920 JULY 30.

3PLR/1920/2  (CCA-E)

OTHER CITATIONS

[1920] 3 K.B. 643

BEFORE THEIR LORDSHIPS:

EARL OF READING, C.J.SALTER, and ACTON JJ.

REPRESENTATION

G. HURST K.C. (J. FLOWERS with him) – for the prosecution.

DOUGHTY (GENTLE with him) – for the appellant.

Solicitors for appellant: C. R. SAWYER AND WITHALL, for J. C. BUCKWELL, Brighton.

Solicitors for the Crown: J. K. Nye AND Donne, BRIGHTON.

MAIN ISSUES

CRIMINAL LAW: – Unlawful killing – Using Instruments with intent to procure Abortion – Evidence of similar user on another Woman – Admissibility.

HEALTHCARE LAW: – Care of pregnant women – Abortion – Using certain instruments to procure the miscarriage of a certain woman – Relevant considerations

PRACTICE AND PROCEDURE – EVIDENCE: – Admissibility – Objection to the admission of evidence – When sustainable

HISTORY AND SUMMARY OF FACTS

The appellant was indicted for unlawfully killing, and for feloniously using certain instruments to procure the miscarriage of, a certain woman. At the trial evidence was given for the prosecution by the husband of the woman that, having obtained the appellant’s name and address from another woman, he went to the appellant’s house and arranged with her for his wife to go there in order that the appellant might perform an operation on her which would procure a miscarriage, and that his wife subsequently went to the appellant’s house and afterwards had a miscarriage and died of septic abortion. The evidence of the other woman was tendered by the prosecution to show that the appellant had performed a similar operation on her some months previously. The evidence was objected to on the ground that the defence was a denial of the husband’s evidence and that the appellant had never seen the deceased woman. The evidence was admitted, and the appellant was convicted:-

Held, that the evidence was rightly admitted, as it tended to corroborate the husband’s evidence and was, therefore, relevant to an issue before the jury, and that the conviction must be upheld.

APPEAL against conviction.

The appellant, Annie Lovegrove, was tried at the Sussex Assizes on an indictment which charged that she, on June 25, 1920, did unlawfully kill Edith Emily Purcell, a married woman, and that on June 18, 1920, she feloniously used certain instruments to procure the miscarriage of Edith Emily Purcell.

The evidence for the prosecution showed that Mrs. Purcell was taken ill in the evening of June 18 and had a miscarriage. She was taken to a hospital on June 20, suffering from septic abortion, and she died in hospital on June 25. A post mortem examination disclosed an injury to the womb.

William Charles Purcell, the husband of Edith Emily Purcell, was called as a witness for the prosecution, and gave evidence to the following effect: In June, 1920, he discovered that his wife had been unfaithful to him and that she was pregnant. In consequence of a statement made to him by a Mrs. Type he and his wife went to the appellant’s house in Brighton in the morning of June 18. He asked the appellant if she had brought about miscarriages even after five months, and she said that she had, but that it was very dangerous after four months. An appointment was made for his wife to see the appellant that evening. In the evening he took his wife to the appellant’s house and left her there. After an interval of about an hour he returned to the house, and took his wife away. She appeared to be suffering although previously she had been in good health. In cross-examination it was suggested to Purcell that he had gone to the appellant’s house merely for the purpose of looking for apartments, but this he denied.

Mrs. Type was called as a witness for the prosecution. Her evidence was objected to by counsel for the defence but was admitted by Roche J. She said that in September, 1919, being then pregnant, she went to the appellant’s house on two occasions and that the appellant performed an operation on her as a result of which she subsequently had a miscarriage. In June she had a conversation with Purcell and gave him the appellant’s address, which Purcell wrote down in her presence on a piece of paper which was produced at the trial.

The appellant gave evidence. She said that Purcell, but not his wife, came to her house in the morning of June 18 to look for apartments and that on being told the terms for her rooms he said he would think about it. Neither he nor his wife came to her house that evening. She had never seen Mrs. Purcell and had never performed any operation on her or on Mrs. Type. The latter had been at her house on one occasion; her object in coming was merely to borrow some money.

The appellant was found guilty and was sentenced to eighteen months’ imprisonment with hard labour.

Doughty (Gentle with him) for the appellant.

The evidence of Mrs. Type was inadmissible. There was no issue raised at the trial as to the nature of an operation which had been performed, or as to the intention with which certain instruments had been used. The defence was a complete denial of the allegations of the prosecution. The appellant’s case was that Mrs. Purcell had never been to her house and that she had never performed any operation on Mrs. Purcell. Evidence to show that an accused person has performed other illegal operations is only admissible where the prosecution seeks to prove a system or course of conduct; or to rebut a suggestion of accident or mistake; or to prove knowledge by the prisoner of some fact: Rex v. Bond. (1)The present case does not fall within any of those categories. Mrs. Type’s evidence had no relevance to the issue whether Mrs. Purcell went to the appellant’s house on the day in question, and that was the only issue in the case. No doubt, her evidence tended to make the jury think that it was more probable that Purcell was telling the truth than the appellant, but that does not render the evidence admissible, for in every case evidence of a previous offence would have that effect.

[It was also contended that the evidence of Purcell was that of an accomplice, and that there was no corroboration of his evidence.]

G. Hurst K.C. (J. Flowers with him) for the prosecution.

Evidence is admissible if it is relevant to an issue before the jury, notwithstanding that it tends to show the commission of another offence or that the prisoner is of bad character. One issue in this case was as to the purpose for which Purcell went to the appellant’s house in the morning of June 18, and as to what passed at his interview with the appellant. The evidence of Mrs. Type was relevant to that issue, for it corroborated the evidence of Purcell. It was, therefore, admissible. 

[Makin v. Attorney-General for New South Wales (2), Rex v. Ball (3), Rex v. Boyle (4) and Rex v. Shellaker (5) were cited.]

Doughty replied.

The judgment of the Court (Earl of Reading C.J., Salter and Acton JJ.) was delivered by:-

CHILDREN AND WOMEN LAW: – Women and Healthcare – Women and abortion – Abortion procured by husband of deceased woman to terminate pregnancy arising from her adultery – Unlawful and felonious killing arising therefrom – Relevant considerations

MAIN JUDGMENT

EARL OF READING C.J.  who, after stating the facts, said:

The defence set up at the trial was that the appellant had not performed any operation, either lawful or unlawful, upon Mrs. Purcell, and that after her interview with Mr. Purcell on the morning of June 18 she never saw him again, and that she had never seen Mrs. Purcell on any occasion. The appellant gave a definite denial of the statements made by Purcell in his evidence as to what took place at the first interview, and therefore the truth or untruth of Purcell’s account of that interview was put in issue. If Purcell’s evidence was believed there could be no doubt as to the appellant’s guilt, and indeed that was not disputed. It was therefore very important to ascertain what in fact took place at the first interview. Evidence is admissible if it tends to prove that the prisoner has committed the act charged. One step in proof of the act charged against the appellant was that Purcell went to her house one morning to arrange with her for her performance of an illegal operation on Purcell’s wife, and that he went there in consequence of information which he had received from Mrs. Type. The evidence of Mrs. Type established that she had given the appellant’s name and address to Purcell, and that a similar operation had been performed on her by the appellant in 1919. It is contended by counsel for the appellant that Mrs. Type’s evidence was inadmissible on the principle laid down in Makin’s Case (1), Rex v. Bond (2) and other cases. In the present case we are not intending to deal with the broad general principle that has been laid down in those cases, and nothing that is said in this judgment is intended to extend that principle. In Makin’s Case (3) the Lord Chancellor said: “The mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury.” This Court has said, notably in Rex v. Shellaker (4) where the principle as stated by Channell J. in Reg. v. Ollis (1) was quoted, that the question in each case is whether on the facts the evidence is admissible according to the established principles of law. There may be cases where, as was said in Rex v. Shellaker (2), “though in strictness the evidence is admissible, the judge may be of opinion that it is of so little real value, and yet indirectly so prejudicial to the prisoner, or that it is so remote, that it ought not to be given. That, however, does not affect the general principle.” We do not desire either to extend or to restrict the principle laid down in Makin’s Case (3) and in other similar cases. But the present case does not depend on the principle there laid down. The evidence of Mrs. Type was admissible if it was relevant to an issue before the jury, and it was none the less admissible though it might prove that the appellant had committed a similar crime on a previous occasion. In our opinion Mrs. Type’s evidence tended to prove that Purcell’s account of what took place at the first interview was true, and that the appellant’s version of the interview was untrue; it also tended to prove that Purcell did take his wife to the appellant’s house in the evening of the same day for the purpose of having an illegal operation performed by the appellant.

The evidence was, therefore, rightly admitted, and this ground of appeal fails.

[The Lord Chief Justice then dealt with the question whether there was any corroboration of Purcell’s evidence, and came to the conclusion that there was corroboration.]

Appeal dismissed.

REFERENCE OF CASES CITED – SEQUENTIALLY

(1) [1906] 2 K. B. 389, 414.

(2) [1894] A. C. 57.

(3) [1911] A. C. 47.

(4) [1914] 3 K. B. 339.

(5) [1914] 1 K. B. 414.

_______________________

(1) [1894] A. C. 57.

(2) [1906] 2 K. B. 389, 414.

(3) [1894] A. C. 65.

(4) [1914] 1 K. B. 414.