ABSTRACT
Sydney Gaol Delivery held at Darlinghurst of the murder of the infant child of one Amber Murray. The learned judge before whom the case was tried deferred passing sentence until after the argument of the special case which he stated for the opinion of the Supreme Court of New South Wales. The points reserved by the learned judge were: first, that his honour was wrong in admitting evidence of the finding of other bodies than the body of the child alleged to be Horace Amber Murray; secondly, that his honour was wrong in admitting the evidence of Florence Risby, Mary Stacey, Agnes Todd, Agnes Ward and Mrs Sutherland [to the effect that they had entrusted other children to the prisoners, which children had never been seen again] ... Special leave was granted to appeal to this Board from the judgment of the Supreme Court of New South Wales ... The question which their Lordships had to determine was the admissibility of the evidence relating to the finding of other bodies, and to the fact that other children had been entrusted to the appellants. In their Lordships’ opinion the principles which must govern the decision of the case are clear, though the application of them is by no means free from difficulty. It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the
evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other. The principles which their Lordships have indicated appear to be on the whole consistent with the current of authority bearing on the point, though it cannot be denied that the decisions have not always been completely in accord ... Their Lordships do not think it necessary to enter upon a detailed examination of the evidence in the present case. The prisoners had alleged that they had received only one child to nurse; that they received 10s a week whilst it was under their care, and that after a few weeks it was given back to the parents. When the infant with whose murder the appellants were charged was received from the mother she stated that she had a child for them to adopt. Mrs Makin said that she would take the child, and Makin said that they would bring it up as their own and educate it, and that he would take it because Mrs Makin had lost a child of her own two years old. Makin said that he did not want any clothing; they had plenty of their own. The mother said that she did not mind his getting £3 premium so long as he took care of the child. The representation was that the prisoners were willing to take the child on payment of the small sum of £3, inasmuch as they desired to adopt it as their own. Under these circumstances their Lordships cannot see that it was irrelevant to the issue to be tried by the jury that several other infants had been received from their mothers on like representations, and upon payment of a sum inadequate for the support of the child for more than a very limited period, or that the bodies of infants had been found buried in a similar manner in the gardens of several houses occupied by the prisoners.6
