164 / 328
DECISIONS OF PROFESSIONAL
INTEREST
Communication between Husband and Wife :
whether
admissible in Criminal Proceedings.
At common law there has never been a separate
principle or rule that communications between a
husband and wife during marriage are inadmissible
in evidence on grounds of public policy (so held by
Lords Reid, Morris, Hodson and Pearce, Lord
Radcliffe dissenting) ; accordingly, except where the
spouse to whom the communication is made claims
privilege from disclosure under sect, i
(d)
of the
Criminal Evidence Act, 1898, evidence as to com
munications between husband and wife during
marriage is admissible in criminal proceedings.
The appellant, who was the mate of a Dutch ship,
was convicted of non-capital murder committed
at Menai Bridge. Part of the evidence tor the pro
secution admitted at his trial consisted of a letter he
had written to his wife in Holland which amounted
to a confession. The appellant had written the letter
on the day of the killing, on board his ship after it
had left Menai Bridge for Liverpool; he had handed
the letter in a closed envelope to a member of the
crew requesting him to post it as soon as the ship
arrived at a port outside England. The appellant
was arrested when the ship reached Liverpool, and
after his arrest the member of the crew handed the
envelope to the captain of the ship who handed it
over to the police. The member of the crew, the
captain and the translator of the letter gave evidence
at the trial but the wife was not called as a witness.
On appeal against conviction on the ground that the
letter was wrongly admitted in evidence.
Held—The
appellant was
rightly convicted
because, for the reasons stated above, the letter was
admissible in evidence.
Appeal dismissed.
(Rumping
v.
Director of Public Prosecutions, 1962,
3 All England Reports 256).
Sale ofLand: Disclosure ofService ofNotice ofDisrepair:
Performance of Contract.
A vendor was entitled to a lease of two flats which
were subject to control under the Rent Act 1957.
On 12 October, 1961 the borough council served
on the vendor a certificate of disrepair under the
Rent Act, 1957 in respect of one of the flats. The
effect of this was that the rent payable by the tenant
of that flat was abated as from 15 January, 1962
from 283. jd. weekly to 155. 7d. weekly and would
remain abated unless and until repairs were carried
46
out. The vendor's leasehold interest in the flats was
sold by auction on 13 December 1961. The certificate
of disrepair was not disclosed to the purchaser. The
particulars of sale gave the rent of the flat as 285. 3d.
weekly.
The conditions of sale provided, by
condition 4, that no representation or warrant was
made by the vendor that the rent payable in respect
of the tenancy was that properly chargeable under
the Rent and Mortgage Interest (Restrictions) Acts,
1920 to 1939, as amended by the Rent Act, 1957;
and the condition provided that the purchaser should
not make any requisition with regard thereto.
Held—The vendor had been bound to disclose to
the purchaser the certificate of disrepair and con
sequent abatement of rent and was not entitled to
require performance of contract by the purchaser
without regard to the prospective abatement of rent
condition 4 of the conditions of sale not being ap
plicable to the future abatement of permitted rent
by virtue of the certificate of disrepair that had been
served.
(Rosslyn and Lorimer Estates Ltd.
v.
Englefield Holdings Ltd. The Law Times, August
24th, 1962, page 473).
A.dmissibility of Evidence: Use of Tape Recorder.
Four men were charged with burglary and larceny,
were cautioned and were confined in separate cells
in a police station pending trial. A corridor divided
the cells from each other and the police placed a
recording machine in a nearby empty cell. At the
trial a policeman gave evidence of having heard the
defendants shouting incriminating remarks to one
another across the corridor and he stated that he
could confirm from his own human memory the
accuracy of the records of these conversations which
were on tape and which he had played back to him
self for the purpose of checking and proving his own
note made from memory. The tape recording was
not itself used in evidence in court and there was no
suggestion that the tape had been tampered with in
any way between the time that the conversations
took place and the time that the policeman played it
back in order to check his memory. On the question
of the admissibility of the policeman's evidence it
was held by the Court of Criminal Appeal that this
evidence was
admissible because
(i)
the tape
recorder was used by the policeman to perform the
function which would otherwise have been per
formed by a pen or pencil in his own hand, and he
used the record produced by the tape recorder to
refresh his memory when he was giving evidence.
Alternatively, the machine was set by the policeman
to perform the function of making a record and very
soon after the conversations had taken place the
policeman adopted as accurate the record which the
machine had made and thereupon it became his own