SEVEN-year-old Godfrey Dover had been strangled, scalped and buried in a shallow grave by James Reid in 1961, and the murderer, who was sentenced to death, 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, and 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 concluded that the question to be determined had not been clearly explained to the jury, and may even have been misunderstood by the learned trial judge himself.
As such, the verdict on the preliminary issue had to be set aside. This conclusion necessarily vitiated the subsequent proceedings, so that the findings and sentence on the second preliminary issue and on the general issue also had to 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 E.A. Romao represented the Crown.
The appellant was convicted of murder after the preliminary issues as to whether he was ‘fit  to stand his trial and was mute of malice’ had been determined. The argument upon appeal was as to 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, 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, 1961. 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 of whether he was ‘mute of malice’ was then tried. The jury decided he was ‘mute of malice’.
“It was never seriously an 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 Chief Justice stated. 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. vs. Pritchard. (1) The case is important in 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 proven 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, and he read it and made a sign that he was not guilty.

The jury then found that he was able to plead. Jury members were then sworn to determine whether the prisoner was now sane or not. Evidence was given with a view to showing that on examination before the magistrate, he had understood the charge and had 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, he could yet not understand the proceedings of the trial.

B. Alderson, 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 of 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 to properly 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 that, 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, 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 while growing up. The prison doctor said 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, observing that it was regrettable that Dr. Grandsoult, who was in charge of the Mental Hospital and who gave evidence favourable to the appellant at the trial of general issue, had not been called at the hearing of the preliminary issue.

The appeal was allowed, and a new trial was ordered.