June 27, 1908.]
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409
Now the first objection taken on behalf of the prisoners was a general one. Mr. Slade argued that the police officer, not being armed with a warrant, acted illegally in :-
(a) entering the house; (b) searching the premises;
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com-
(o) removing property he found there and that therefore evidence of everything that happened consequently upon the outry was inadmissible and should have been excluded. It was put to us that though a police officer if he sees an indict- able offence committed, may follow the offender into his house and arrest him on pursuit, yet that under no other circumstances may he enter a house without a warrant; and we were asked to reject the whole of the evidence obtained by this illegal entry. Now it is very desirable that the general principles of law applicable to arrest without a warrant should be easily ascer tained-clear and definite. A person who arrests another with a warrant usually does so because be must act instantly if he is to act at all and he ought to be in no doubt as to his own duties and liabilities.
But unfortunately the details of the law on the subject are very complicated and its principles are not easy of prehension. The statement of the law given at III Russell on
Crimes" p. 110 appears to be a fair summary of the views of the older authorities on the power of a police officer without a warrant to break outer doors to offect an arrest, as follows:-"Though a felony has been actually committed yet a bare suspi cion of guilt against the party will not authorize a proceeding to this extremity unless the officer comes armed with a warrant from a magistrate grounded! on snou suspicion. For where a person lies under a probable suspicion only and is not indicted it is said to be the better opinion that the breaking open outer doors in order to apprehend him cannot be justified-or must at least be considered as done at the peril of proving that the party s apprehended upon suspicion is guilty. But a different doctrine appears to have formerly prevailed on this point-by which it was held that if there were a charge of felony laid before the constable, aud reasonable ground of suspicion such con. stable might break open doors although he had no warraut," The law is here stated in some- what goueral terms. In the reported cases the discussion seems usually to have been concerned with one of two questions. The One-what would be the consequences to the surviving party
CHINA OVERLAND TRADE REPORT. as well before custody as after; and would established. If in consequence of a confession exclude confessions made to a person known improperly obtained collateral information be to be a police constable or person in authority procured the information may be used thongh -such as an inspector of the Society for the confession may not. For instance if the Prevention of Cruelty to Animals. I must prisoner points out the place where property is notice R. v. Berriman because there a much hidden and if it is found there the fact of the simpler principle was laid down by Erle J. finding and the fact that the prisoner gave "By the law of this country, no person ought directions may be given in evidence though the to be made to criminate himself, and no police particulars of his statement may not." There officer has any right, until there is clear proof seem to be some modern cases which do not of a crime having been committed, to put quite bear out this last sentiment but this is searching questions to a person for the purpose
not material to this case. of eliciting from him whether an offence big
But the prisoner did not point out the place where the watch was been perpetrated or not." 1 here were hidden and this at once excludes the applica- rumours that a certain woman bad been tion of all the cases which were referred to, for delivered of a child nd had concealed it: they have no relevancy to the present case
I and questions were put to her by the take this to be clear, that the finding of the police which criminated herself. I confess watch, had it been found without anything being that I do not see much distinction between done by the prisoner would have been evidence. such a case nod the present one where there I should then have warned the jury, having in was a rumour that No. 1 prisoner had committed view the other evidence, of the great danger of the murder. The probability of a crime having convicting the prisoner of murder in the circum. been committed by a certain person cannot
stances because it was of itself too slender to affect the duty of the police and make it differ-substantiate the other facts of the case, 'much ent from the case of probability of a certain of which was worthless; and specially because person having committed a crime. Erlo Ja the identification of the watch as being that of opinion seems to me therefore to cover the pre- the deceased was of the most unsatisfactory sent case,
But it stands alone, and though still nature. I allude particularly to the five minutes quoted in Archbold, is ia conflict with the more playacting in which the widow of the deceased recent decisions to which I have alluded. In indulged before she would indentify it. And I R. v. Miller, Hawkins J. said "Every case must should have warned the jury still more emphati- be decided according to the whole of its circum- cally that if they allowed this evidence to stances." I do not like the circumstances in substantiate the other facts of the case, it would which this confession was obtained; but I may involve the setting up of the story of the infor act in strict comformity with the rule laid down mer, which I have no doubt as I told the jury in Rogers v. Hawken, applying to it the test of was in all incidents of his relations with the a voluntary confession as laid down in E. v. prisoners, a tissue of falsehoods, and if this were Thompson, it is not voluntary if it is obtained set up, it might lead them to find all throo by any sort of violence. And I am clearly of prisoners guilty. In these circumstances if the opinion that for three or four policemen to go jury had found all three prisoners guilty there into a man's bedroom at 5 a.m, and wake him up, could have been no such motion as has now been and ask him questions, which were intended to made; and the prisoners would have had nothing and did, make him oriminate himself is an un- but the prerogative of mercy to fall back on. doubted act of violence; and that the statements But the evidence which was put before them made by him in the circumstances are not enabled the jury to accept the prisoners' posses voluntary, and are therefore inadmissible. sion of the watch as an admitted fact; and on I have so far assumed that there was an actual that without doubt their verdict hung. This confession in this case. The Attorney-General | evidence was wrongfully admitted, and we have strongly contended that there was no confession. not to inquire what they might have done in By confession I understand, not necessarily a other circumstances, but simply to deal with the full confession of guilt, but any statement made facts as they are. I think therefore that the which, being relevant to the issue, may be put conviction should be quashed. I have only to add in evidence against the person making it. The
one word in consequeuro of what was said by the evidence as to what took place must be taken judges in Rex v. Bɩwdry. Have "sacrified from the second occasion when Sergeant justice and commou souse, not at the shrius of Wilden was in the box. The statements made mercy but at the ghrine of guilt? I say in this by the prisoner were the answers to the questions case, emphatically, no. have already glanced as to his name: and the answer to the question at the unsatisfactory nature of the evidence. "who does this belong to ?" He said "it I will deal with it now more generally; there belongs to me,' Now stopping here, I have no aro only two facts certain in the case; the three doubt whatever that this was a very material men were murdered and that the informer was admission. Not perbaps from the Attorney among those who committed the crime: but General's point of view, who candidly admitted as to the facts related by the informer, and by that he wanted to omit what actually took place, the principal witnesses for the Crown, especially and the jury to infer from other circumstances by the widow of one of the deceased there was that the box belonged to the prisoner. I do not not oue flimsy particle of truth in it: the real much care for such a method of conducting a facts of the case were carefully kept back by prosecution for murder, even though it be with those who only kaew them, and the most ridi a view to avoiding a difficult point of law: but culous cock and bull story put in their place. the question was put by Wilden with a definite What the true faols of this most dastardly intention, and he obtained the information he murder were we are not likely ever to know; expected and wanted. But there is more, it nor whether the real murderers were not four requires no argument to support the proposition but wenty-four. I wil go further and say that a confession as I have above defined it may that I have grave doubts whether fang shui be by gesture just as much as it may be by had anything to do with the case. The jury words, and therefore the following must be have found the prisoners guilty probably from incorporated into the confession " I said open it, and he opened;it". Taking the words and acts of the prisoner together, I think they amount to a confession, of what? of the fact that the prisoner had the watch subsequently identified 88 belonging to the deceased, in his possession. This is what in fact occurred, and I think it would be wrong to say, Oh you can omit all this, and treat the question as if the watch had been found in the box by Sergeant Wilden, the prisoner not taking any part in what happened, or even being absent, I now o me to the point on which at one time I felt great difficulty. It was very strenuously argued by the Attorney General that the fact of finding the watch might be put in evidence even though the knowledge as to where the watch was obtained by confession not admissible in evidence. 1 take the law as is stated in Sir Fitz James Stephens "General View" which i is in agreement with all the other books. One point with relation to confessions is well
some
weakness which they detected in the prisoners' defence, but certaily not cu the direct evidencs offered by the Crown.
The Paisue Judge said-This is a question of law as to the admissibility of certain evidence arising on the trial of an indio mont at the Criminal Sessions for the Lonth of May which has been reserved by the Chief Justice for the consideration of the Full Court under section 78 of the Criminal Procedure, 1899. Now the matter which is objected to is contained in the evidence of Police Sergeant Wilden and it may be divided into three distinct parts.
Firstly, the statement made by the prisoner No. 1 in response to a question put to him by the sergeant.
Secondly, the fact that the box was opened by No, J.
Thirdly, the words “I searched the box and found a watch and chain"--and also the pro- duction of the watch and chain by the witness.
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upon attempt to arrest without a warrant the officer killed the accused or was killed by him: in other words what would be the legal responsibility of the survivor? The other ques- tion-what would be the position of the officer on an action of trespass for breaking and enter- ing-would he have a good defence, if without a warrant? I can nowhere find it suggested that the legal effect of a tortious entry would be to shut out evidence of what took place after the officer entered anl in my opinion such a novel principle would require to be supported by the most unimpeachable authority. Now in the before us it does not appear from evider.ce nor Was It suggested in argument that there was any breaking" of the house in the technical sense by the police in order to effect their entry. The Court will not presume illegality and ou the assumption that a "breaking would have baru illegal I think it only reasonable to con- clude either that the door was open-or more probably that it was opened to the police from within. If this was s› the circumstances would resemble those in the case of Smith v. Shirly (3 C, B. 142) an action of trespass where, the duor having been opened from within to the defendant by an inmate of the house and that there being no warrant the Court thought a plea of justification would have been good if it had showed distinctly not only that there was reason to believe that the suspected person was within; but also that the defendant entered on a reason- able suspicion of felony and for the purpose of arresting him. Is not that case an authority for saying that the police sergeant in the circumstances before us might have a good defence to an action for trespass ?
in my opinion it is. In any case I wish to make it clear that though it is highly desirable for a police officer to b, fortified with a warrant when he makes forcible entry, in order to run no risk of possible complicatious, I refuse to lay down as a general principle that the police are under