SUPREME COURT OF QUEENSLAND

1. THE COURT:  These are appeals against convictions of the murder of a 4 year old girl Margaret Dorrick.  The appellants are the girl’s mother, Emily Dorrick and her stepfather, Trevor Chevathen.

2. The grounds of appeal allege errors in the reception of evidence and in the summing up. In order to deal with the issues that are raised it will be necessary to present a short review of the evidence.

3. The evidence fell into three categories –

1. post-mortem medical evidence concerning the nature and extent of the injuries suffered by the child and the cause of death

2. tape‑recorded confessions of each appellant

3. evidence of untrue statements made by the appellants about the cause of the child’s injuries.

4. Neither appellant gave evidence at the trial.

5. By the end of the trial the issues had narrowed to whether each appellant –

1. individually or in combination killed the deceased with intention to kill or cause grievous bodily harm;

2. if aiding pursuant to section 7(1)(b) or 7(1)(c) of the Code, that appellant had knowledge of the other’s requisite intent.

Such an approach was consistent with the principles approved in Lowrie & Ross.^[1]

Summary of evidence

6. Margaret was born on 18 March 1995 and died on 6 August 1999. Her natural father disappeared from the scene well before her birth. When she was 4 months old she was left in the care of her maternal grandmother.  At about this time the appellants met, and a few months later (October 1995) Emily Dorrick moved to Trevor Chevathen’s address near Weipa.  In 1997 they had a son, Travis Chevathen.  At the time of Margaret’s death Travis was 2 years old.  Emily Dorrick had spent only a fortnight with Margaret over the period until she was almost 4 years old.  Margaret was then brought to live with the appellants at Weipa.  She was immediately enrolled at a preschool where her teacher was Eva Fabian.  After a few months Ms Fabian observed Margaret came to school with bruised eyes.  Margaret had told her that she fell down the steps.  However in their records of interview the appellants each admitted a series of events during the period of five and a half months while Margaret was with them in which they had been physically violent to her.  On the morning of 6 August 1999 the appellants called the ambulance.  Margaret was dead when they arrived and her body showed evidence of severe beatings.

Chevathen’s record of interview

7. After Margaret’s death, Chevathen agreed to a record of interview. He told police that Margaret started living with them in February 1999 and that things fell apart when Margaret started telling lies. He claimed that Margaret had told her preschool teacher that he had been sexually abusing Margaret and that this was untrue. As a result Margaret was given a hiding. He admitted that on that occasion he strapped and punched her around the head causing bruising and minor swelling to the left side of the head. He hit her on the bottom and back with a piece of wood, a bit smaller than half an inch thick, with sufficient force to break it in half. On this occasion Emily had hit Margaret a few times by slapping her on the face and then hitting her four or five times around the back and leg area with an electric jug cord. He had used the jug cord once also.

8. He further indicated that Margaret was hit on three or four occasions over a month and a half, “but nothing as severe as last night’s”.

9. In relation to the day preceding Margaret’s death he recalled that he heard his son Travis crying, which he presumed to be a result of something Margaret had done. He and Dorrick began questioning Margaret and one thing led to another. Over a period of an hour Margaret was sat on a stool, questioned, punched or hit off the stool onto the floor, dragged by her hair back onto the stool and hit off again. When she became delirious and unconscious he considered that she was playing “mind games”. Dorrick had joined in these assaults hitting Margaret two or three times around the face.

10. When Margaret became unconscious Dorrick hit her about two times with the jug cord, trying to wake her up. She was then undressed and put in the shower, but to no effect. She was then put into a room on a blue foam mattress, this being her “punishment room”. He told Dorrick that Margaret was alright. He checked on her regularly until 3.30am after they had come back from the pub. She was then unconscious but breathing. When he woke up at about 9.30am and checked on Margaret she had no pulse and could not be resuscitated. He conceded that he and Dorrick had “gone overboard” with their disciplinary actions.

Dorrick’s record of interview

11. Dorrick identified seven separate occasions when she and Chevathen had assaulted Margaret prior to the final incident of 5 August.

1. an occasion after Margaret had allegedly told her preschool teacher that Chevathen was touching her in bed;

2. an occasion following Chevathen claiming that Margaret was trying to push Travis out of a window;

3. an occasion when Margaret had told her that she had “done something rude” to Travis;

4. an occasion in April when Margaret had been visiting a neighbour (Carol) when she was not supposed to;

5. an occasion when they had to go and “grab her”, take her inside and “smack her with the wood”.  (That was a reference to a piece of wood used to lock the lounge window);

6. an occasion on 12 July when Margaret had been given a hiding for telling Chevathen’s parents that the marks on her face were caused by Trevor hitting her;

7. an occasion five days before the final assault when they both hit Margaret.  She had fallen and bumped her head when Trevor slapped her.  They hit her about 10 or 12 times that night, just with their hands, because she was “telling lies”.  When Chevathen hit her it “had a knock‑out effect” and afterwards she was walking “zig‑zaggy, wiggly‑woggly way”.  The assault ceased when a neighbour came over and Margaret was sent to her room.  At this point Dorrick did not wish anyone to see what she and Chevathen were doing because she was “frightened from being called a child abuser by the police”.

12. The final incident commenced on 5 August 1999 when Margaret was struck because she had showed her bruised face to a visitor.  As a result she was seated on a stool and hit off it repeatedly about fifteen times, both Dorrick and Chevathen being involved.  As a result of hitting her head repeatedly on the floor she became unconscious.  She was revived by being placed under a cold shower but later lapsed into unconsciousness.  Dorrick made an attempt to bring her around by hitting her across the abdomen five or six times with the end of the jug cord.

13. Margaret was put to bed at about 10.00pm after vomiting her meal. Dorrick went out and returned about 3.30am and checked on Margaret who requested a glass of water. Dorrick woke at 6.00am and found Margaret still breathing but not talking. At 9.00am when Chevathen checked on the child, he told Dorrick she was not breathing. He then attempted to resuscitate her and Dorrick phoned the ambulance.

Post-mortem evidence

14. A local doctor who was called to the scene at 10.45am on 6 August 1999 opined that death had occurred 1‑2 hours previously.

15. Post-mortem examination revealed the following significant abnormalities:

1. severe bruising of the face with two black eyes;

2. bruising of almost the entire scalp, some several days old or more;

3. severe lacerations inside the upper lip;

4. a subdural clot over the left side of the brain;

5. brain swelling and minor bruising to the brain surface.

The head injuries were the primary cause of death.  An impact to the face or scalp could have produced the clot.  At least moderate force was required to bring about the subdural haemorrhage.

16. Other less serious injuries were noted:

1. swelling over the back of the neck;

2. healing fractures in two bones of the left forearm, at least several days old;

3. five healing rib fractures, two on the right side of the spine and three on the left, at least a number of days old;

4. dark criss‑crossed lines over the abdomen and six pairs of parallel lines.  Subdural clot or haematoma – evidence of Dr Charles Naylor.

5. purple bruises over the central and upper chest and over the left shoulder and upper arm;

6. six pairs of brownish parallel marks over the right arm and right chest;

7. ill‑defined parallel marks on the left thigh, back, buttocks and backs of legs.  Due to the multiplicity of marks and injuries it was extremely difficult to know what was super‑imposed on what and the age of those injuries.  The presence of the marks on the child’s abdomen was consistent with them being caused by a jug cord.

17. The subdural haemorrhage was consistent with having been caused by a vigorous blow or from impact to the floor. It was also consistent with having been caused by the child being knocked fairly vigorously off a low stool and hitting her head on a hard concrete floor. Apart from the head injury the other injuries were not life‑threatening.

18. Further evidence from Dr Tannenburg, a neuropathologist, referred to the ruptured septum which is a membrane dividing the brain into halves.  This was caused by blows to the head producing a swinging motion to the head.  It was an injury of the type commonly occurring in “punch drunk” boxers from repeated heavy blows to the head.  A very high degree of force would be necessary to produce such an injury in the nature of someone attempting to “king hit” the person concerned.  Doctor Tannenburg was of the opinion that the brain injuries occurred somewhere between 4 and 24 hours preceding the death.  Both the ruptured septum and the subdural haemorrhage were consistent with repeated blows to the head and could have been caused by a blow with rotating force, a severe blow or a fall.

Other evidence

19. The ambulance officer who attended at the scene was told by Chevathen that Margaret had fallen from a tree. The ambulance officer described Chevathen as quite shocked, while Dr Cape who also attended at that time described him as “emotionless”.  Dorrick was tearful and wailing, and appeared inconsolable.

20. About an hour later, a policeman spoke to Chevathen and asked how the child had received her injuries. He was told that she had stumbled and fallen as a result of having “pigeon feet”. A similar version was given by Dorrick. A little later, at the Weipa police station, Dorrick gave a statement explaining Margaret’s injuries as resulting from a fall from a tree. She later agreed that this was untrue and that she had made it up because she was afraid of being arrested for what she had done to her daughter. A similar statement was given by Chevathen in relation to the injuries being the result of a fall from a tree. He later explained this as an attempt on his part to cover up for Dorrick.

21. Eva Fabian gave evidence in relation to the earlier violence allegedly related to Margaret’s complaint about interference by Chevathen. She said that the child had made no such complaint to her and she had not said anything like that to Emily Dorrick. The child had told her that she fell down the steps.

Evidence of lies and need for directions thereon

22. It was submitted on appeal that the learned trial judge erred in admitting evidence of lies told by the appellants. It was further submitted that having admitted such evidence his Honour erred in failing to direct the jury at all as to the use that could be made of such evidence.

23. The evidence in question was that of the ambulance officer and doctor who attended the scene, and early statements given to the police preceding the records of interview. These variously alleged that Margaret had fallen from a tree, that she had suffered a fall last night, and that she had fallen over because of “pigeon feet”. Reference was also made to Ms Fabian’s evidence which ran counter to the reason given by the appellants for the first occasion of their disciplining Margaret.  May we say that we have difficulty in understanding how Ms Fabian’s evidence of Margaret’s statement to her was admissible.  However no objection was taken to the leading of such evidence, perhaps because in a practical sense it tends to cast doubt upon speculation that sexual abuse was occurring.  That of course was not an issue.  The true relevance of the appellants’ statements on that subject was that they believed that a sexual complaint had been made against Chevathen.  This arises from the appellants’ own statements and it may be relevant to their motive or intention.  No objection was taken at the trial on behalf of either appellant to the reception of any of the above statements.

24. The submission now is that, although no objection was taken at the time, the trial judge should have excluded statements of the appellants that might eventually be found by the jury to be lies. Evidence of lies told by an accused person (as distinct from admissions against interest) may be received as evidence that carries its own separate incriminatory effect, namely as indicating a consciousness of guilt of the offence charge, provided of course that the evidence is capable of satisfying the tests in Edwards v The Queen.^[2]  Such evidence may be capable of amounting to corroboration and of adding to the weight of a circumstantial case.  But where the evidence lacks the potential incriminatory effect recognised in Edwards, it was submitted that such evidence ought not to be received.  That would seem to be correct, unless of course the evidence was also receivable on another basis.

25. In the present case the learned trial judge, prior to summing up, indicated that he was not prepared to give an Edwards direction in relation to the inconsistent early statements to which reference has been made.  With respect we agree with that ruling.  Such directions have been overused in recent years and have tended to raise unnecessary complications in relatively straightforward cases.  This court has indicated^[3] that such directions should be used sparingly and only in relatively clear cases.  However the present submission is that the evidence of these early statements by the appellants ought not to have been received in the first place.  We do not agree with the submission.  The reactions and conduct of the appellants immediately after the death may give some relevant insight into their actions, even if later statements made by them conflict with the earlier ones.  It is important to remember that although by the end of the trial the only live issue was whether the necessary intent for murder existed, all issues concerning murder or alternatively manslaughter were alive while the evidence was being led.

26. We do not think that it matters in the end whether such evidence is regarded as evidence of conduct which enables other evidence to be better understood, as evidence of the appellant’s conduct and demeanour, as “narrative”, or as evidence of an admission against interest. Such statements would not satisfy the requirements of the last mentioned category however if they were purely self‑serving statements.  The difficulties surrounding this area of the law are discussed in R v Callaghan^[4] which recognises that the rules in this area are by no means hard and fast.  Often such statements are mixed, that is to say they contain both incriminatory and self-serving statements.^[5]  If called, the whole of the statement, both inculpatory and exculpatory is to be received.  Such statements may be made, as here, during the first occasion when the accused speaks to an outsider about the victim and  may be associated with evidence of demeanour.  Such statements may be a part of the history that allows other evidence to be understood in a true context.  Once received a statement containing a self-serving statement becomes evidence for the accused as well as against him or her.  Although not bound to put into evidence a version which is in substance exculpatory, some prosecutors do so in fairness to the accused especially if it is an apparently early spontaneous reaction.  In such instances it may be “a benefit tendered by the prosecution and accepted by the defence”.^[6]  That however was not the case here.  Essentially the statements were the first explanation each appellant offered for Margaret’s condition, and as attempts to distance themselves from the injuries.  Those attempts were however not persisted in for long.

27. The Crown is not limited in its presentation to the court of such statements to those which the Crown at the end of the case will assert to be the ultimate true admission. Complete consistency of account in the statement of any accused person is not commonly found. Differing versions may cast light upon each other and may assist a jury in obtaining some insight into the truth of the matter even though they may fail to justify an Edwards direction.  The fact that the giving of inconsistent versions also shows that the accused person has been inaccurate on one or more occasions or even told a lie is an incident of the reception of such evidence.  It may permit the Crown to make submissions as to the reliability or unreliability of the accused person’s statements, and if the accused person gives evidence, to use this circumstance in detraction of the accused’s credit or reliability.  It is true that such evidence may not be called for the sole purpose of attacking the credit of a party or witness except in very circumscribed situations^[7] but the evidence in the present case is not of this kind.  It is also true that a discretion to exclude such evidence might rightly be exercised in relation to statements that are not central to the issues or sufficiently relevant, or where their small probative effect was outweighed by significant prejudice.  However once again that does not apply to the present statements.  In my view they were all rightly received.  The fact that they were inconsistent with other admissions that were received does not make them inadmissible.

28. However the question remains whether directions should have been given to the jury as to how such evidence might be used. It is not in every case that such directions will be necessary, but the desirability, when such evidence has been received, of giving a direction along the lines of what has commonly been described as the Broadhurst direction^[8] has been increasingly recognised.  In Zoneff^[9] the majority in the High Court (Gleeson CJ, Gaudron, Gummow, Kirby and Callinan JJ), whilst refraining from suggesting that such a direction would always be necessary, suggested that it would have been appropriate in that case to give a warning against reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.

29. The need for such a direction would seem to arise in cases where there can be seen to be a risk of a misunderstanding about the significance of possible lies. In other words, even when an Edwards direction is considered inappropriate by the trial judge, it may be desirable that there be a warning against the danger of concluding that a person must be guilty because he has told lies.  That might be reinforced by examples of other reasons why the accused may have made such statements.  In Zoneff Kirby J thought that a “general direction” or a “Broadhurst direction” or a “Richens^[10] direction” was necessary but that the trial judge had given a direction that was close enough to such a direction.

30. In the context of the present discussion reference may usefully be made to a specimen direction published by the Judicial Studies Board in the United Kingdom, cited in Richens.  It includes the following words:

“The mere fact that the defendant tells a lie is not in itself evidence of guilt.  A defendant may lie for many reasons, for example: to bolster a true defence, to protect someone else, to conceal disgraceful conduct of his, short of the commission of the offence, or out of panic or confusion.  If you think that there is, or may be, some innocent explanation for his lies, then you should take no notice of them…”

31. In the present case although the judge intimated that he would not give an Edwards direction, the Crown prosecutor was permitted to make reference during address to “lies” including the admittedly untrue statements that the child had fallen out of a tree.  By this time it was clear that the only live issue was intent to kill or cause grievous bodily harm.  The untruthful statements early in the investigation could not fairly be regarded as advancing the Crown case on such a point.  The lies are as explicable upon awareness of general wrongdoing as they are upon any consciousness of murder.  It is difficult to see anything for which the jury could rightly use the evidence other than its effect upon their reliability, that is to say upon their credit.

32. In these circumstances it was incumbent upon the learned trial judge to give some direction to the jury warning them against the danger of misuse of the evidence. In particular it would have been appropriate to have told them that the evidence was received to allow as full a picture as possible to be obtained of the accused’s conduct immediately after the death of the child, but that it would not be safe to draw any particular conclusion from such statements for the reasons in the Richens directions.  In short this was a case in which we think that directions such as those quoted above from Richens should have been given.

33. If this were the only point arising on the appeal we would be inclined to apply the proviso, especially in the absence of any point being taken by defence counsel at trial. However there are further matters which now need to be considered.

Evidence of other acts of violence against the child – propensity evidence

34. Further grounds of appeal are that his Honour erred in admitting evidence of other acts of violence against the child; and alternatively, if the evidence was rightly admitted, his Honour erred in failing to direct the jury as to its permissible use.

35. Objection was taken at trial to the reception of the admissions of the respective appellants of earlier assaults upon the child. His Honour admitted the evidence holding it to be capable of showing a pattern of behaviour by the appellants, the nature of the relationship between them and the child, as having possible relevance to the issue of intention and to the negativing of accident.

36. Mr Moynihan for the appellants submitted that since Hoch^[11] and Pfennig^[12] all evidence which reveals criminal propensity is inadmissible unless there is no rational view of it consistent with the innocence of the accused.  This is premised on the assumption that relationship evidence is regarded as a species of propensity evidence.^[13]   We do not think that that is a correct statement of the law.  The question was addressed by McHugh J in KRM v The Queen.^[14]  Plainly “relationship evidence” which is an incidental form of propensity evidence remains admissible although it could never meet the test which is, according to the submission, necessary before it could be admitted.  Some latent ambiguities in Pfennig, particularly in relation to the term “the evidence” were referred to by this court in O'Keefe.^[15]  At least some of the references in Pfennig to “the evidence” are references to the evidence as a whole.  There is no doubt that such a test is binding and appropriate with respect to similar facts evidence and to evidence tendered for the purpose of proving propensity.  But it would in our respectful view be absurd to apply the same test to evidence which is admitted for other purposes, usually subsidiary but nonetheless valid purposes, which can never satisfy so rigorous a test.^[16]

37. The evidence in question in this case was in my view potentially relevant on a number of bases. It may be mentioned in passing that under s 132B(2) of the Evidence Act “relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence” in specified criminal proceedings including proceedings for homicide.  The question of course remains whether the evidence was “relevant”.  In my view the evidence here satisfies this requirement on a number of levels.  One is the nature of the relationship between the child and the respective appellants.  It enables a wider view to be taken of the relevant occasion where it might be thought there was an escalation of violence.  It is also evidence of the attitude of each appellant towards the child, and of the willingness of each to harm her.  Of course it does not of itself prove murderous intention at the relevant time or at any time, but if the best available evidence of hostility and of attitude against which the action of the appellants on 5 August may be gauged.  An inference of intention can only be reached through adverting to a wide range of circumstances, and particularly to previous conduct shown by an accused person towards the victim.  Moreover, the issues were not narrowed down to intention until the end of the case.  The prosecution was entitled to call such evidence inter alia to rebut accident.

38. In our view the evidence was rightly admitted, and its reception is not prohibited by any rule derived from Hoch or Pfennig.

39. There remains however the question whether his Honour’s directions to the jury in relation to such evidence were adequate. Mr Moynihan submitted that the evidence shows the appellants in a discreditable light and as persons likely to have committed cruel and reprehensible offences of violence against the child. There was therefore a risk that the jury might convict largely because of such a propensity or seek to punish them for conduct other than that charged.

40. The learned trial judge instructed the jury when the relevant tapes were played that neither accused was charged with the conduct that was admitted in the tapes and that it was simply evidence of the relationship between the child and the two accused and between the accused persons themselves. The evidence was capable of showing a pattern of behaviour and was described by his Honour as circumstantial evidence, in relation to which he gave further directions in due course.

41. In summing-up his Honour told the jury they could look at all the surrounding circumstances including the previous assaults. His Honour continued:

“The Crown Prosecutor makes the point that the accused desisted in the earlier assaults but did not on that occasion.  The prosecution argues that you would therefore find that there was a different intent on this occasion.  The defence says that really it was no different.  It was simply an intent to discipline but on this occasion the discipline actions got out of hand.

It is for you to form your own view as to the intensity of this assault and whether it was persisted in beyond the point when both or either of the accused would have known that they were causing grievous bodily harm.  The record of interview of both accused persons identifies loss of consciousness while the assault continued.  Mr Chevathen particularly claimed he thought that meant the child was playing “mind games”.

The defence also refers to the general caring of the child referred to by Ms Fabian in her evidence.  The defence refers to the concerns for the child’s well-being after the assault, checking on her throughout the night, buying lollies for her.

The relevant time at which you must decide whether the requisite intention was present is the time when the actions of the two persons were being undertaken.  It is for you to decide in all the circumstances what was the level of awareness of each of the accused persons during the delivering of those blows and what was the intention of each one at that time.

If you are satisfied beyond reasonable doubt that the accused person whose case you are separately considering had the requisite intention and was either a committer of the offence or an aider in the commission of the offence, then the proper verdict in that case would be guilty of murder.  If you are not so satisfied that that intention existed but you are still satisfied that the killing was unlawful, then your proper verdict would be not guilty of murder, guilty of manslaughter.  If you come to the view that this killing was not unlawful then, of course, your verdict would be not guilty on all counts.”

However his Honour gave no warning as to possible misuse of the evidence of the earlier assaults.

42. In the understandably emotive circumstances of the present trial it was we think necessary that some warning be given against misuse of the evidence of the earlier assaults, and in particular to warn the jury against convicting them of murder merely because they thought that they were bad or callous people. We do not think that a warning against propensity would have been appropriate. If any propensity is shown by the former conduct it was a propensity to batter the child rather than to kill or maim her. The appropriate warning would therefore be against too readily making an assumption of the murderous intent that is necessary before a person is guilty of murder.

43. We therefore consider that this was a case where a direction was necessary against misuse of highly prejudicial evidence that was admitted for limited purposes.

Whether summing-up adequately put the defence case

44. The summing-up followed surprisingly short addresses. Counsel for Chevathen, having asked only 19 questions throughout the course of the 4 day trial, addressed for 21 minutes. Counsel for Dorrick addressed for 12 minutes, and his Honour’s summing-up was completed in 47 minutes. It may well be that defence counsel considered that the less said the better. Be that as it may, this does not seem to be a case where a statement by the trial judge of the nature of the defence might be rendered substantially unnecessary by reason of a vigorous or repetitious presentation by defence counsel.

45. In summing-up his Honour said very little in relation to either the Crown or defence submissions. There were only two relevant references to the defence:

1. the negative statement that Chevathen’s counsel had disavowed any authorisation, justification or excuse for the killing,

2. two brief references to defence statements in the passage cited above in paragraph [41].

46. The present case certainly contains shocking evidence of maltreatment of a child, and reveals a level of callousness that is difficult to comprehend. Even so, it does not follow that the consequence of death or grievous bodily harm was intended, or that murder as distinct from manslaughter was a virtually inevitable conclusion.

47. The duty of a trial judge “to put fairly before the jury the case which the accused makes”^[17] has recently been considered by this court in R v Mogg^[18] and R v Lock.^[19]  We do not propose to re-visit the relevant principles.  In the context of the present case it was, we think, necessary for the learned trial judge to go further than he did in ensuring that the jury understood the basis upon which it was contended that the appellants should not be convicted of murder.  The learned judge gave some directions on the subject of “intention”, but none which brought the circumstances of the case into the reckoning.  At the very least one would have expected the distinction to be drawn between callousness and specific intent to cause grievous bodily harm.

48. We do not say that his Honour was obliged to present every factor that might assist the defence, but at least some of the following matters would be essential for there to be a proper understanding of the defence. Firstly there is the fact that death was caused by a head injury, possibly by a single blow. Only moderate force was required to cause the subdural haematoma. There would not necessarily have been any external exhibiting factors. The various injuries to the body, although reprehensible, were not a cause of death or likely to cause death. These are very relevant considerations in a case where it was not known which of the offenders delivered the blow or performed the act which caused the death, and where the criminal liability of each appellant depended on s 7, that is to say by continuing to assist the other with knowledge of that person’s intention to cause grievous bodily harm.

49. There was also behaviour after the event to be weighed in the balance when inferring whether the necessary intent had existed. This included the ringing of the ambulance, the shocked condition of the appellants and the fact that no sustained attempt was made to cover up their actions.

50. It seems to us that although there is no duty upon any trial judge to dredge up unmeritorious defences, courts have a particular duty in the case of an unpopular defendant or a natural target of moral outrage to see that the nature of any defence that such a person has is properly understood by the jury. We do not think that this happened in this case.

Summary

51. No question arises of applying the proviso. In our opinion there must be a new trial.

52. The appeal should be allowed and the convictions set aside. A new trial is ordered.