R v Wallace

R v Wallace (1931) 23 Cr App R 32 is a leading English criminal case, the first time a conviction for murder was overturned on the ground that the verdict "cannot be supported, having regard to the evidence", as provided for by Section 4(1) of the Criminal Appeal Act 1907. The headnote states: "The Court will quash a conviction founded on mere suspicion".

William Herbert Wallace, a 52-year-old insurance agent, had been convicted at the Liverpool Assizes in 1931 of the brutal murder of his wife, Julia Wallace, and sentenced to death.

Facts
The case against Wallace was entirely circumstantial, with several curious aspects. The night before the murder a telephone message had been left for Wallace at his chess club, requesting that he call on "R.M. Qualtrough" at 7.30pm the following evening to discuss an insurance policy. The address given was in Mossley Hill, a district of south Liverpool several miles from Wallace's home in Anfield. Wallace arrived at the chess club about 25 minutes after the phone call, and was informed of the message by the club captain, Samuel Beattie.

The following night Wallace left home at about 6.45pm, catching several trams to Mossley Hill. During his journey, and subsequent search, he inquired of numerous people — including a policeman — directions to "25 Menlove Gardens East", the address Qualtrough had given. It became apparent that while there were Menlove Gardens North, South and West, there was no Menlove Gardens East, and no trace of Qualtrough either. After spending about 40 minutes inquiring around the district, Wallace got a tram home. Entering the house at about 8.45pm in the presence of his terraced neighbours John Sharpe Johnston and Florence Sarah Johnston, he found his wife bludgeoned to death in the parlour, with evidence of a bungled robbery.

The Police discovered that the telephone call had been made from a public call box only 400 yards from Wallace's home, and hypothesised that Wallace had made the call himself to create an elaborate alibi, and had in fact murdered his wife before leaving his house the following evening. However, no trace of blood was found on Wallace even when his clothing was benzidine tested, although the killer would have been heavily bloodstained, and a milk-boy's testimony of seeing Mrs. Wallace alive sometime between 6.30pm and 6.45pm left Wallace scarcely enough time to kill his wife, clean himself up, and stage a robbery before catching his tram. The murder-weapon was not found, and no motive could be ascribed to Wallace in killing his wife. On the contrary, Wallace, 52, was in poor health, and his wife had fulfilled the role of companion and occasional nurse (though the couple often employed outside help when in poor health). They had been married 17 years and had no children.

When investigations into other suspects such as Richard Gordon Parry fell flat, the Police charged Wallace with murder.

At the committal hearing, several factual misstatements were made by the Prosecuting Solicitor, and these were widely reported in the local press. The feeling in Liverpool was anti-Wallace, and although the jury was selected from outside the city environs, they came from nearby towns, which could have been infected by prejudice. Wallace cut an austere, fusty figure, and his stoicism throughout his ordeal, combined with his intellectual hobbies of chess, botany and chemistry, gave the impression to some of a cold, calculating killer who had contrived to commit the perfect murder.

Wallace was tried at St. George's Hall at the Assizes in April, 1931. Edward Hemmerde, KC led for the Crown, assisted by Leslie Walsh. Roland Oliver, KC, assisted by Sydney Scholefield Allen, led for the Defence (instructed by solicitor Hector Munro of H.J. Davis, Berthen and Munro).

During cross-examination it became clear that the police surgeon had blundered, in not taking temperature to ascertain the time of death, and the Police had allowed the poorly-preserved crime-scene to become cross-contaminated. Indeed, the investigating officers' fingerprints were found all over the crime scene, and in different photographs of the same rooms many objects are in different positions or even entirely absent.

Beattie, the recipient of the telephone message at the chess-club, who knew Wallace well, was unshakable in his opinion that the voice was not Wallace's.

Trial
The trial judge, Mr. Justice Wright, summed up for an acquittal:

This murder, I should imagine, must be almost unexampled in the annals of crime. . . murder so devised and arranged that nothing remains which will point to anyone as the murderer... no finger-prints... and no weapon that can be traced anywhere, and, so far as can be ascertained, no conceivable motive in any human being.

..the evidence in this case, and the evidence that can be brought against anyone here is purely circumstantial. You know in many cases, especially of murder, the only evidence that is available is circumstantial evidence; but circumstantial evidence may vary in value almost infinitely.

The real test of the value of circumstantial evidence is: Does it exclude every reasonable possibility? I can even put it higher: Does it exclude other theories or possibilities? If you cannot put the evidence against the accused man beyond a probability and nothing more, if that is a probability which is not inconsistent with there being other reasonable possibilities, then it is impossible for a jury to say, 'We are satisfied beyond reasonable doubt that the charge is made out against the accused man.' A man cannot be convicted of any crime, least of all murder, merely on probabilities, unless they are so strong as to amount to a reasonable certainty. If you have other possibilities, a jury would not, and I believe ought not, to come to the conclusion that the charge is established...

Then again, the question is not: Who did this crime? The question is: Did the prisoner do it? - or rather, to put it more accurately: Is it proved beyond all reasonable doubt that the prisoner did it?

It is a fallacy to say: 'If the prisoner did not do it, who did?' It is a fallacy to look at it and say: 'It is very difficult to think the prisoner did not do it'; and it may be equally difficult to think that the prisoner did do it. The Prosecution have to discharge the onus cast upon them of establishing the guilt of the prisoner... beyond a peradventure, beyond all reasonable doubt.

The evidence is quite consistent with some unknown criminal, for some unknown motive, having got into the house and executed the murder and gone away...

However you regard the matter, the whole crime was so skilfully devised and so skilfully executed, and there is such an absence of any trace to incriminate anyone, as to make it very difficult to say, although it is a matter entirely for you, that it can be brought home to anyone in particular.

If there was an unknown murderer, he has covered up his traces. Can you say it is absolutely impossible that there was no such person? But putting that aside as not being the real question, can you say, taking all the evidence as a whole, bearing in mind the strength of the case put forward by the police and the prosecution, that you are satisfied beyond reasonable doubt that it was the hand of the prisoner, and no other hand, that murdered this woman? If you are not so satisfied, if it is not proved — whatever your feelings may be, whatever your surmises or suspicions or prejudices may be — if it is not established as a matter of evidence and legal proof, then it is your duty to find the prisoner not guilty.

There was general surprise when, after an hour's deliberation, the jury returned with a verdict of guilty.

Mr. Justice Wright, after pointedly omitting the customary thanks to the jury, passed the mandatory sentence of death on William Herbert Wallace.

Church of England's intervention
No sooner had Wallace been sentenced to death, than public opinion started to swing in his favour. In a unique act, the Church of England offered special prayers - "intercessions extraordinary" at Liverpool Cathedral.

You shall pray for them that are set by God's mercy to secure the administration of true justice in our land. Particularly...you shall pray for His Majesty's Judges of Appeal, that they may be guided in true judgement... And you shall pray for the people of this County Palatinate, that their confidence in the fair dealings of their fellow-man may be restored... Finally, you shall pray for all who await the judgement of their fellow-man, and commit them to the perfect justice of Almighty God.

Court of Appeal
The prospects for Wallace's appeal were not good, however. Never before had the Court of Criminal Appeal overturned a conviction in a capital case on the grounds that the verdict was "unreasonable, or cannot be supported having regard to the evidence", and those were the only realistic grounds of appeal available to Wallace.

The Appeal was heard on 18 May and 19 May 1931 at the Royal Courts of Justice, Strand, London by Lord Chief Justice Hewart, sitting with Mr Justice Hawke and Mr Justice Branson.

Exchanges with Hemmerde KC
There were several key interventions from the Judges on 19 May, as Hemmerde KC made the case for the Crown.

Mr. Justice Branson: "Assuming that the murder had been committed, what evidence is there that the telephone call was put through by the appellant?"

Hemmerde KC: "Of course, there is no direct evidence and there could not be. If a man chooses to make a bogus telephone call upon himself there never could be any direct evidence except someone who saw him do it."

Mr. Justice Branson: "I rather felt as you were putting your case that you were assuming it was he who made the call because of what happened afterwards, and then saying that he must be guilty because he put through the call."

Lord Chief Justice Hewart: "In other words, you use as a step in your argument that which is only consolidated when your argument is complete."

Hemmerde KC: "I think I accept that, my Lord."

Lord Chief Justice Hewart: "Are you not really saying, if it be assumed this appellant committed the murder, other circumstances fit in with that theory?"

Hemmerde KC: "I shall submit to your Lordships that.. one is brought almost irresistibly to the conclusion that the pieces fit together just like a jig-saw puzzle."

Mr. Justice Branson: "If what he does is consistent only with his having been the author of the telephone message, then I follow your argument, but if what he does is consistent not only with that but with somebody else having sent the telephone message, then the subsequent actions do not help you... No doubt it is a question of fact, but the question is what is the evidence from which that fact is to be inferred?"

Hemmerde KC: "I submit that the only evidence from which it can be inferred is the evidence of his suspicions actions."

Judgment
Unusually, the Court retired for 47 minutes, to consider its verdict. The ruling, delivered by Lord Hewart CJ said:

The...obvious fact is that the case is eminently one of difficulty and doubt..

Now, the whole of the material evidence has been closely and critically examined before us, and it does not appear to me to be necessary to discuss it again...

Suffice it to say that we are not concerned here with suspicion, however grave, or with theories, however ingenious. Section 4 of the Criminal Appeal Act of 1907 provides that the Court of Criminal Appeal shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it cannot be supported having regard to the evidence.

... the conclusion at which we have arrived is that the case against the appellant, which we have carefully and anxiously considered and discussed, was not proved with that certainty which is necessary in order to justify a verdict of guilty, and, therefore, that it is our duty to take the course indicated by the section of the statute to which I have referred. The result is that this appeal will be allowed and this conviction quashed.