Appeal Court helps ‘shallow grave’ murderer buy time–orders new trial

IN 1961, seven-year-old Godfrey Dover was strangled, scalped and buried in a shallow grave by James Reid – the murderer — who was sentenced to death, but earned a re-trial on appeal.

At Reid’s trial, there were preliminary issues relating to insanity and whether the accused understood the proceedings; but, the jury, following directions of the trial judge, found the accused guilty of murder.  He was sentenced to death.

However, on appeal, the Federal Appellate Court allowed the appeal and ordered a new trial, after taking into consideration the summing-up of the trial judge on the first preliminary issue, which was inadequate.

The Appellate Court had reached the conclusion that the question to be determined was not clearly explained to the jury, and may even have been misunderstood by the learned Judge himself.

Verdict on the preliminary issue must therefore be set aside. This conclusion necessarily vitiates the subsequent proceedings so that the findings and sentence on the second preliminary issue and on the general issue must also be set aside, the Federal Supreme Court found.

“Since the appeal has been decided on a matter affecting a preliminary issue only, this is a proper case to be sent back to the Supreme Court for retrial, and we so order,” Chief Justice Hallinan of the Federal Supreme Court, in its Criminal Appellate Jurisdiction, declared.

Other judges in the Federal Supreme Court were Justices A.M. Lewis and J.F. Marnan.
Attorney-at-Law Dennis Weithers appeared for the appellant, while Mr. E.A. Romao represented the Crown,

The appellant was convicted of murder after preliminary issues as to whether he was fit to stand his trial and was mute of malice had been determined. The argument upon appeal concerned the sufficiency of the judge’s directions on these issues.
Among other things, the Appellate Court held that a person is capable of standing his trial if he is able to comprehend the course of proceedings at the trial and the details of the evidence, and to exercise the right to give evidence himself; and not merely if he understands the indictment and can plead to it.

Chief Justice Hallinan, who delivered the judgment, said: “In this case, there can be no doubt that the appellant killed the boy, Godfrey Dover, aged seven, on October 10, 1960. The child went for a walk with the appellant, who strangled him, cut off the scalp with a trowel, and buried the body.

“Two preliminary issues were tried before the general issue. First, the appellant was tried on the issue (of) whether he was sane and fit to take his trial. When that was decided in the affirmative, the accused remained mute, and the issue as to whether he was mute of malice was then tried. The jury decided he was.

“It was never seriously in issue whether the appellant was deaf or dumb – if he did not talk. This was due either to malice or to a disordered or deficient mind.” The first preliminary issue, therefore, was the more important, according to the Chief Justice.

He went on to point out that the leading case on the trial of such an issue as this is R. v. Pritchard (1)  The case is important in the determination of the present appeal, and it is necessary to cite from the report at some length. The jury found that Pritchard was mute by the visitation of God.  The report that proceeds (7 C’ & P. 804):
“The jury was sworn to inquire whether the prisoner was able to plead to the indictment.

“It was proved that the prisoner was able to read and write, he having been taught in the Deaf and Dumb Asylum in London. The indictment was given to him, which he read, and he made a sign that he was not guilty.

“The jury (members) then found that he was able to plead. They were then sworn to determine, whether the prisoner was now sane or not. Evidence was given with a view to showing that on the examination before the magistrates, he had understood the charge, and answered in writing. It was, however, sworn by several witnesses that the prisoner was merely an idiot, and had no proper understanding; and that though he might be able to be made to comprehend some matters, yet he could not understand the proceedings in the trial.”

Alderson, B., the trial judge in Pritchard’s case (1), told the jury (ibid.):
“The question is whether the prisoner has sufficient understanding to comprehend the nature of this trial, so as to make a proper defence to the charge…whether he is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence  – to know that he might challenge any of you to whom he may object – and to comprehend the details of the evidence, which, in a case of this nature, must constitute a unique investigation.

“Upon this issue, therefore, if you think that there is no certain mode of communicating the details of the trial to the prisoner so that he can clearly understand them and be able properly to make his defence to the charge, you ought to find that he is not of sane mind. It is not enough that he may have a general capacity of communicating on ordinary matters.”
Continuing, Chief Justice Hallinan said, “In the present case, the preliminary issue was correctly stated thus: whether the appellant is or is not insane and unfit to take his trial. The issue is very different from the issue of insanity when the general issue is being tried. The question is not whether the appellant knew at the time of the killing what he was doing or whether he was doing wrong, but whether he is fit to take his trial. That is, not merely to comprehend the indictment, but also the course of proceedings in the trial.

“The evidence called by the defence and by the prosecution was short. The appellant’s mother gave evidence of the appellant being sickly from childhood, having fits (and) given to staring blankly. Some of her collateral relatives had been insane. When she and her other son, Archibald Anderson, visited the appellant in prison, he just stared and did not say anything.

“Anderson said he visited the appellant four times in prison, and on the first two occasions, with counsel for the defence. The appellant did not answer any question, but just stared. A prison officer of the infirmary, where the appellant was under observation, gave evidence. He said that the appellant did not speak at all, but behaved quietly and ate well.

“On the other hand, the appellant’s step-father said the appellant was normal growing up. The prison doctor said that the appellant was reluctant to answer questions, but did so if he spent a good deal of time with him and was patient. He was unable to say whether the appellant was or was not of unsound mind.”

Chief Justice Hallinan concluded his judgment with the observation that it was  regrettable that Dr. Grandsoult, who was in charge of the Mental Hospital, and who gave evidences favourable to the appellant at the trial of general issue, was not called at the hearing of this preliminary issue.
The appeal was allowed and a new trial ordered.

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