The Court held that a trial judge's emphasis on the importance of particular evidence (including motive) in a summing up does not constitute misdirection, and that failure to object to the summing up at trial will preclude a later application for new trial on that ground.
Later decisions that cite Mutual Life Insurance Company of New York v Moss
Mutual Life Insurance Co. of New York Defendants, Appellants; and Morrie Melville Moss, Official Receiver in Bankruptcy and Trustee of the Estate of H. I. Blake Deceased Plaintiff, Respondent.
H C of A
On appeal from the Supreme Court of Western Australia.
8 November 1906
Griffith C.J. Barton and Higgins JJ.
Villeneuve Smith, (with him Russell) for the appellants.
Pilkington K.C. (with him Marsland), for respondent.
Russell, in reply.
Griffith C.J.
This was an action brought by the personal representative of one H. I. Blake upon a policy of assurance effected upon the life of the assured with the appellant company. Amongst other defences it was pleaded that by the policy the assured warranted and agreed that he would not die by his own hand, whether sane or insane, within one year of the issue of the policy, 15th September 1904, and that the assured died on the 6th August 1905 by his own hand. The only matters for consideration by the Court are in respect to that defence. The case was tried by McMillan J. with a jury, who found that that defence was proved. A motion was then made to the Full Court for a new trial on the ground of misdirection, and upon other grounds which do not concern us. The misdirection complained of was in respect of the way in which the learned Judge dealt with evidence which had been given as to motive. The Full Court were of opinion that the direction of the learned Judge was erroneous, and ordered a new trial. I will state very briefly the nature of the case, to show how the question arises. On the 6th August Blake was undoubtedly killed by an explosion of dynamite or gelignite, which must have been close to his person when it exploded—the explosion taking place in a somewhat lonely spot in the bush a few miles from Perth, although not very far from a main road. There were many circumstances indicating that the explosion was not accidental, but had been caused by Blake himself, and a great deal of evidence was given on the subject. The evidence was of course circumstantial, but it is admitted by the respondent that upon the evidence, apart from the evidence of motive, the jury might as reasonable men have come to the conclusion that Blake died by his own hand. In order to assist the jury in coming to that conclusion evidence was given of motive. Evidence of motive is of itself, of course in the nature of circumstantial evidence as to the main question in issue. In considering the conduct of a man, regard is had by Judges and juries to the ordinary conduct of human affairs. When a man does an extraordinary or a wicked thing, there is probably some cause inducing or impelling him to do so, and the more heinous the act is the more important becomes the question of motive. When, therefore, the question for consideration is whether such an act is intentional or not, it is of the highest importance to consider whether the person in question, in the circumstances in which he was placed, had any inducement to form such an intention. On charges of murder sometimes the question is whether or not the accused caused the death, and sometimes whether, if he caused it, he did so intentionally or accidentally. The existence of a motive may tend to show either that the person in question did the act simpliciter, or that he did it intentionally. Such evidence is given on the subsidiary question of probability; and in cases depending on circumstantial evidence the question of probability may be most important. In the present case the motive suggested is this: Blake was a man of good connection, the son of a gentleman holding a high official position in the British Empire. He had been employed in Perth as manager of an insurance company, and had embezzled from that company a sum of £4,000. On the 4th August, two days before his death, it had been definitely discovered that he had been embezzling. On that day he was suspended from his office, and was told that if he went away he would be brought back; which was a plain intimation that his employers intended to prosecute him. On the following day, the 5th, he sent a message by cable to his father asking for the sum of £1,500 to prevent legal proceedings. That cablegram was written in the presence of the general manager of the company who was his employer. He knew then that, whether that appeal to his father succeeded or not, he was not in a position to make good the deficiency of £4,000. He must then have known that the discovery of the full amount of his defalcations was imminent, and that, whether his father responded to the appeal or not, he would be prosecuted for embezzlement, to which he would have no possible defence; and he further knew that if he attempted to abscond he would be arrested. When, under these circumstances, a man on the following day is found dead by an explosion of dynamite, the surrounding circumstances of themselves justifying the conclusion that the death was not accidental, the existence of a motive for self-destruction was clearly a matter for the jury to consider in making up their minds whether the act was intentional or not, that is to say, in considering that question they would naturally direct their minds to the question whether he had a reason to commit such an act, and, therefore, whether it was probable that the act was accidental or intentional. This being, in short, the nature of the evidence, McMillan J. thus directed the jury upon the point:—"Mr. Harney, in asking you to come to the conclusion that he committed suicide, laid great stress on the fact that there is here to be found a strong motive for an act which, as a rule, is not committed by a man unless under some influence which strongly urges him to do that from which we should all of us shrink. Here again the onus is on him. He has to satisfy you that this death is not an accidental death, but one brought about by Blake's own hand, and if the death is explicable in two ways the presumption is against suicide. It must be made out, to use the expression which was chosen by Mr. Pilkington on one of the cases, by preponderence of evidence, and it is really hardly so much a statement of law as of common sense, because no jury ever found that a man had committed an act of self destruction unless there was a preponderance of evidence. If the matter were left so evenly balanced that the jury thought he might have died by accident or by suicide, then of course they would take the former view, and they would assume that he had not committed that which is a crime—they would find that the death was an accidental death. It is in this respect that motive becomes of the greatest importance. Mr. Pilkington very properly told you that motive in itself is no evidence of a crime. If murder has been committed it is possible to put one's hand very often on a person who had every motive to commit the deed, but that in itself is no evidence against the suspected person; but if you found evidence against him, then the motive taken in connection with that evidence"—which I take to mean primâ facie in connection—"would make the case much stronger against him than it would be if the motive were absent... If on the evidence there is anything which inclines you to believe that Blake did take his own life, then you will be more inclined, and you would be more entitled, to give effect to the views which you form if you found that there was at the same time strong motive existing which would account for his committing that act. You must therefore look at all the facts of the case, and one of them, and the most important one is the presence or absence of motive." That part of the summing up was quoted by the Chief Justice in the Full Court, and he was of opinion that the direction was wrong. He put it in this way:—"In thus charging the jury I venture to think the learned Judge attached undue importance to the evidence relating to motive. The existence of a motive for self destruction rebuts the presumption against suicide, but it ought not, in my opinion, to supersede the necessity for the same amount of proof as would be deemed necessary in the absence of all evidence of such a stimulus... Consequently I have come to the conclusion that the learned Judge misdirected the jury. The effect of the misdirection upon the minds of the jury may have been such as to lead them to give undue weight to the evidence of motive when considering the two questions, the answers to which are objected to." Burnside J. thought that undue weight was given to the question of motive. He said:—"It appears to me that in a case of this nature the weight which ought to be attached to the presumption of innocence was left out of view, or rather displaced from its position, and the question of motive was given a preponderance which it was not entitled to under the present circumstances. On looking at the learned Judge's summing up to the jury with regard to the question of motive, I cannot help being struck by the importance which the learned Judge directed the jury to attach to the existence or otherwise of what is known as motive." He said further:—"From the passages to which the learned Chief Justice has referred—and they are characteristic of several passages which are to be found in the learned Judge's summing up to the jury—it appears to me that motive has been put forward as a fact of the greatest importance—not merely an auxiliary circumstance to throw light upon what might otherwise be in doubt, but put in the forefront as a matter of the greatest importance." It appears therefore that Burnside J. thought it probable that the jury had been induced to attach too great importance to the existence of a motive. Rooth J. expressed his opinion thus:—"I think that the authorities show that the function of motive is twofold; first, to rebut the natural presumption that a man in a sane state of mind will not commit suicide, and secondly, where there is evidence from which a jury might legitimately find that the death was caused by design, to assist them in arriving at a conclusion as to whether it was by design or accident. This I consider to be the province of motive." I entirely agree with that. Rooth J. continues, "It should be ancillary to the evidence, and not used, as the learned Judge has in my opinion used it in this case, as a sign-post to indicate to the jury whither their conclusion should tend." I have some difficulty in following that passage. However, the learned Judge was of opinion that there had been a misdirection, for he says further on, "I think it is impossible for this Court to say that the way in which the jury were directed on the question of motive could not have influenced their minds." I think it must be taken that the direction did influence the minds of the jury, but on consideration I am of opinion that the direction was entirely correct. The learned Judge told the jury in effect that they could use the evidence of motive to assist them in arriving at a conclusion whether the event was by design or accident. I agree with McMillan J. that motive in this case was of the greatest importance. Even if it were not, I do not know that it is misdirection in point of law if a Judge attaches more importance to one part of the evidence than to another. That motive was a fact or consideration of the greatest importance in this case cannot be denied. The man was found in such circumstances as certainly pointed to his having put an end to his life—he was surrounded before his death by such circumstances that to many men death would appear the only escape from an intolerable burden to himself and his reputation, and the reputation of his family. Under these circumstances it would not be surprising if he put an end to his life. Further, the evidence being such that the jury might find either way, I fail to see that the learned Judge attached too much importance to motive. Whether the evidence in any case is equally balanced or not is a question which can only be answered by the individual to whom it is put. I do not quite know what is the exact meaning of evidence being equally balanced—it may be that one man may say, "I cannot make up my mind," while another man may say, "I think the evidence is a little in favour of the plaintiffs." A juryman, however, has to consider whether he has such a reasonable doubt that the existence of a motive is sufficient to remove that doubt. The stronger the motive the more influence it is likely to have. I think that, if the summing up of the learned Judge is open to any exception, it is certainly not that of being too favourable to the defendants. I think, therefore, the learned Judges of the Full Court were wrong in directing a new trial on this ground. Another point taken was, in effect, that the learned Judge in commenting upon the evidence referred to some parts in detail, but did not refer to other parts. Now, you cannot take isolated passages from a summing up, and so establish misdirection on the ground that both sides of the case were not properly put to the jury. The learned Judge very carefully told the jury that he was not attempting to refer to all the details of the case, and said that many points had been fully discussed by counsel which they might consider of more importance than he did. He said: "It by no means follows that the points with which I am not dealing are issues with which you should not deal when you are considering the conclusion you will come to on the questions left." The learned Judge then called the attention of the jury to such matters as he thought were of the most importance. At the conclusion of the summing up no objection was taken, and he was not asked to correct anything he had said, or any error in fact which it is now suggested he made. Both parties were apparently quite satisfied with the summing up. In my opinion, if there were no more in the case, that would be sufficient to preclude the defendant from asking for a new trial. There is a long series of cases, many of which were cited by Mr. Russell yesterday, ending with Nevill v. The Fine Art and General Insurance Co.[1], establishing that you cannot have a new trial on the ground of misdirection because the learned Judge has laid stress on one point more than another; and further establishing that you cannot have a new trial for misdirection unless the attention of the learned Judge has been called at the trial to the alleged misdirection, and opportunity has been given to correct it. I think therefore that the appeal must be allowed.
Barton J.
I am entirely of the same opinion on both points.
Higgins J.
I am of the same opinion. I should like to add that I cannot find any difference of opinion as to the law as between this Court and the Full Court, although we are allowing the appeal. We are agreed as to the major premiss; but we think that the Full Court has wrongly regarded McMillan J. as having assigned to motive a place in evidence to which it is not entitled. The application made to us now is for a new trial on the ground of misdirection only; and that has to be borne in mind. The Full Court seems to have said that McMillan J. has, in his summing up to the jury, attached undue importance to motive—that is the mode in which the matter is expressed by the Chief Justice and Burnside J. I think that the degree of importance attached to a particular fact by a Judge in summing up is not ground, and never has been ground, for a new trial. If the whole facts have been fairly left to the jury, and they were told that it was for them to decide upon the whole of the facts as to whether or not the deceased committed suicide, there is no ground for a new trial on the ground of misdirection. It is quite true that motive for suicide is not per se evidence of suicide. There must be some evidence of the corpus delicti, but there was substantial evidence in that direction. Different minds may attach different degrees of importance to particular facts such as motive—motive, in this case, which might have pressed upon the mind of the deceased. Even if the jury were believed by this Court to have given far too much importance to any particular fact, that would not be ground for a new trial; neither is the fact that the Judge has given undue importance to a particular fact a ground for a new trial. But I agree with the learned Chief Justice that McMillan J. has given no undue importance to the evidence of motive on the part of the deceased.
Appeal allowed. Judgment appealed from discharged, and motion for new trial dismissed with costs. Judgment of McMillan J. restored.
Solicitors, for the appellants, Haynes, Robinson & Cox.
Solicitors, for plaintiff respondent, Ewing & Co.
[1] (1897) A.C., 68.