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They first of all went to the place where the cycle had been left and brought it to the steps lending down to the Lens' quarters, and) then Smith and Flattery went down to the quarters, leaving Li Chau in charge of the cycle.
+
Before us she expressed herself very emphatically as being in a position to recognise the offender IT she had met him in the street; but the words taken down by Assistant Superintendent Kent are certainly not erophatic.
PROPER SAFEGUARDS. It now becomes necessary to con- sider the circumstances under which this particular identification parade was held.
Identification parades necessarily play a large part in Police pro- cedure, and, if held under proper safeguards, may, and do, furnish very valuable evidence.
But it is obvious that they are capable of inducing very serious It is miscarriages of justice. for that reason that certain rules have been laid down for the conduct of parades which ought, in our view, never to be departed from except for the most serious reasons.
GAITERS OR OVERALLS. According to Sergt. Flattery, the description then given by the two ladies, talking together, was that the man who committed the offence was "short and thick-act, looked like was, wearing Japanese and gaiters;" and on cross-examination, he definitely stated that this was the total of the description given by them. The two ladies used the word "gaiters," as did Sergt. Flat- tery, when they gave evidence bo-
For the purpose of recording fore the Polico Magistrate, but be fore this Court the ladies said that what takes place on these parades they did not mean gaiters in the special books are provided; and on ordinary meaning of the word, but the front page of each of them the This fact alone mackintosh overalls, and Flattery rules are printed. said that he understood the two would be sufficient to show the lin- Police ladies, from the description they portance attached by the
can authorities to
compliance with gave, to mean overalls. I understand the mistake in the use these rules; but, in addition, with of the word by the ladies, but it what might at first sight appear an seems remarkable that though the excess of caution, there is a "note Sergeant must know what galtere printed at the bottom of each page really are, and says he understood of the book in the following terms from the ladies that they were in "For direction for holding identi- fact referring to overalis, that he fication parades see front of this should have persisted in the use of book." the word "gafters" before the Police Magistrate.
DETAILS OF DRESS. Mrs. Lea and Mrs, Leppard both say that they told Sergt. Flattery
RULES -VIOLATED.
behalf of Now it is argued on defendant that on the particular. parade in question in these pro- ceedings the rules were violated in most important respects. that the man was wearing a white certain shirt; but with this statement the Rule 1 (c) requires:
(a) The accused to be placed Sergeant disagreed.
When Sub-Inspector Smith and among at least eight persons who Sergt. Flattery left the Leas' quar-fare not to be 'Police, if possible. ters and returned to the spot where they left Li Chau in charge of the cycle, they found defendant there. He claimed the bicycle as his, and was dressed in a fawn coloured palm beach coat, khaki shirt and grey trousers; but Flattery says he had neither hat nor tle.
CASE FOR DEFENCE. Tho defendant gives a complete He states denial to the charge. that on May 21, 1928, he had his| usual, with his evening nical as father and some other relatives at
the former's shop in No. 62, Bonham Strand west.
His Lordship pointed out parts of the defendant's evidence which obvious, he- sald, that if the defen- i was corroborated by his wife. It was dant's story was believed he could not be the person who committed between 7
p.m. and a the offence as he was away from the scene little after 8.10 p.m. when the time to the of the offence, according prosecution, was 7.30 p.m.
that the The Crown argues witnesses are interested and should not be belleved; and further that another very material pleca of evidence given by them should also be disbelieved.
Defendant says that he went to his father's shop on the morning fawn coloured palm beach cost, ap of May. 21, 1928, dressed in a khaki shirt and grey trousers and wearing a white topce. His father confirma, this statement and goes on to add that defendant was in the same clothes when the latter left the shop at about 6.30 p.m.
DEFENDANT DISBELIEVED. Defendant's wife atates that he was thus clad when she met him at the junction of Kennedy and Gar- den-roads at about 7 p.m., and that
when he left the house at-about B.15 p.m. to get his cyclo he was The stepmother similarly clad. corroborated this statement.
argues that The prosecution defendant had an opportunity of changing his clothes when he went
home after leaving his father's
shop, that he must have done so or he could not have been wearing the
his
Lea and Mra. clothes which Mrs. There were only seven persons, Leppard says they saw him in at Also that the story of The 7.30 p.m. including defendant, paraded. explanation for this breach of the the defendant, his wife, and rules wis, to say the least of it, stepmother in this respect is faiso not clear; while, though the other and should not be accepted. persons were not police officers, they were police clerks.
A/Sub-Inspector Rezeskwy stated that he had endeavoured to obtain help to persons from outside to form the parade but, as he quite reasonably explained, it is difficult to induce persons of the class of defendant to go to a police station for that purpose.
According to the evidence of Li Chau, defendant bad come along Kennedy-road from the east and had claimed the cycle as his but had been told to await the arrival of the European officers. Li Chau also be of similar age, height, general said that he had first seen defen-appearance and class of life as the dant coming from the east when defendant, the latter was about 60 feet away.
It is to be observed that neither before the Police Magistrate nor in this Court was Li Chau asked his any questions bearing on statement that he had first seen defendant approaching the cycle from the east.
There is certainly a matter in which I do disbelieve the defend- ant which tends to make us doubt his story where it comes into con- flict with the evidence offered on behalf of the Crown.
Defendant stated that after leav-
(b) The persons called in shoulding No. 88, Robinson-road at 8.15 p.m. to retrieve his cycle he walked of Kennedy and Garden-roads and along until he came to the junction then proceeded east along the for-
mer.
No compla was made that the
He says that he did not find persons called in were not of simi- lar age as the defendant; though na regards height it was stated that his cycle where he had parked it at least two of them were consider by St. George's Hotel and walked ably taller than defendant.
wore
Complaint was however made that on, looking neither to the left nor the clothes defendant wure were to the right; and not having found such as to point him out as of a the cycle he turned back and then class different to the others. They saw it on the North side of the road cotton conta and trousers, in a place where he could see the while defendant had on a fawn palin: cycle very clearly because it was beach coat, striped shirt and collar, crystal buttons and white gabardine fairly light, being within eight trousers. It is at least unfortunate feet of a lamp. that more was not done to reduc the difference between defendant and the others caused by the clothes It would have he was wearing. been easy to provide him at least with a cost like the albums,
Defendant, when in the witness box, gave an explanation of this somewhat curious fact with which I will deal later; but it will be ob served that the cycle.had been left near the junction of Kennedy and Macdonnell-roade and the facts of 'the case would lead one to expect
Rule 1 (d) requires (A) that the that the man who left the cycle there would have walked down witnesses should be called by some Macdonncil-road when in search of person who does not know and has the cycle.
IDENTIFICATION.
Next morning--the 22nd May, 1928 at about 11 a.m. there was an identification parade held by As
al
riot seen the accused; care being taken that the cosmiable who has made the arrest should not be sent to call the witnesses.
This requirement seems to us to be of vital importance and should
TRUTH NOT SATISFIED.
In my oinion this explanation He had was an afterthought. not appreciated the importance of Li Chau's evidence until it was brought out in the course of the hearlag before us; and seeing the point that might be made against him he gives an explanation which, neither in its substance nor in his manner of giving it, has satified us of its truthfulness. Another point which affects the
sistant Superintendent Kent be strictly adhered to, both in the defence is that the defendant which the two ladies distinctly say letter and in the spirit. The did not tell his story when firat that they identified defendant, with- dangers that arise from a breach of taken to the Central Police Station. out hesitation, as the man who had it are obvious.
Perhaps almost committed the offence.
as serious consequence would arise Assistant Superintendent Kent from the destruction of public con- took down what Mrs. Lea and Mrs. fidence in the scrupulous fairness Leppard said in the presence and which should be shown to prisoners hearing of defendant when they that muat caur, if it become known Identified the latter. Mrs. Len is that this particular provision of stated to have said "From the the rules is ever departed from. build and appearance of the suspect,
he is the man. I did not see his face."
ESTIMATE AFFECTED.
us is Now the evidence before that A/Sub-Inspector Rozeskwy, In cross-examination, Mrs. Lei said that by the words "build and who was the officer in charge of the case "and knew the defendant well appearance" she meant the same and was present when Assistant thing, le, that the man she saw Superintendent Kent lined the committing the offence was thickset. She further admitted that there men up for the parade, went up to his office after the parade was were on parade two or three other formed and brought down first enen who were also thickset; but Mrs. Lea and then Mrs. Leppard, she maintained that she recognised to the parade. He stood by while defendant as the offender
they were engaged in the identi fication of the defendant
Mrs. Leppard is recorded as
•having said. "I think from the op- pearance and build that is the man It was dark at the time and I could not see his face clearly."
NOT EMPHATIC.
He says that he felt the charge against him would go on, and be Preferred to keep his story until he was before the Police Magistrate.
It is undoubtedly the right of an accused person to do this, but I have more than once called at- tention to the great assistance It is to a defendant for him to be able to say that on the first op pertunity he had, he gave an ac- count which agrees substantially with that given at his trial.
The facts to which I have called attention show that there are serious elements in this case which have not been altogether Batisfactorily met by the defence but it must always be remember- ed that the onus of proving the gullt of An accused beyond reasonable doubt is on the Crown BENEFIT OF DOUBT.-
In the circumstances of this Case I have come to the conélu- sion that I must differ from the decalon given by the Police Magistrate but I differ with some hesitation.
We consider that in thus person- ally conducting the ladies he com mitted in breach of the rules in a most serious particular which must affect our estimate as to the valde When giving evidence before this of the identification which took Court she stated she could not explance at this particular parade; actly remember what she said at and cannot help expressing our the parade, but that she must have surprise that experienced police said something similar to what is officers should have been parties. It must be observed, however, recorded. Before this Court she to the proceeding
and recognised him.”
that the case was not so fully used a different form of words. (B) That the witness identi- gone into before him as it was in She said "I saw the outline, ap-fying an accused should touch this Court. And in particular he him. This was not done on did not have before him the detailed pearance and features of the man
statement of what occurred at the this occasion:
Identification parade, a matter which has seriously affected my view of the facts of the case. I have given the most, careful con- sideration possible to those facts and have come to the conclusion that the onus which is upon the Crown of bringing home the charge beyond reasonable doubt has not bean discharged and that
the benefit: the #bound to doubt to
In cross-examination she said that by "outline" she meant "build, and that by "appearance" ahe also meant "build"; and that by "build" she meant that the offender waa thickset. By "features" she said she meant face, nose and hair. She went on to explain that when the offender passed her twice on foot as has been described, ahe got a view of his side face, and that when he was opposite the lamp commit ting the offence she got a view of hir full face hough, as she explained, this last "Was not a very
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