L
June 27, 1908.]
I
CHINA OVERLAND TRADE REPORT.
tion put by the Sergeant was admissible in evidenos at all, but in fact that the prisoner's statement: his opening of the box and the finding of the watch by the police officer all went to make up one continuous transaction which must stand or fall together. Now the finding of the watch was an integral part of the osse for the Crown and the Court being unwilling to exclude it altogether, but being doubtful if it could be properly admitted thought it right an I imagine that the transaction should go to the jury as a whole, subject to the reservation of the point of law. Under tese circumstances the law is in my opinion perfectly clear. There can be no doubt that a conviction is bad if evi- dence which is inadmissible has been allowed to go to the jury to the prejudice of the prisoner, even if without it, there was legal evidence am- ply sufficient to support a conviction. This is so, though the objectionable evidence was not elicited by the prosecutor at all but spontane- ously volunteered by a witness, sad though pri- soner's Counsel raised no objection to its being received. The grounds of the principle shortly stated are that a Court of Criminal Appeal has no means of determining how far the jury in arriving at their decision have been influenced by the inadmissible evidence. I have no doubt therefore that the verdict cannot stand. Further there is no question that the finding of a watch alleged to be the property of one of the persons whose death formed the subject of this indictment in the possession of the 1st prisoner might have been accepted by the jury as confirmation of the evidence of the informer against all the accused: and this being so the conviction must be quashed and all three prisoners must be discharged.
The Attorney General applied for leave to appeal to the Privy Council but the Chief Justice refused the application.
Wednesday 24th June.
IN ORIGINAL JURISDICTION,
BEFORE THE CHIEF JUSTICE (SIR FRANCIS PIGGOTT).
and that the same test of their admissibility | house of the prisoner subsequently to the ques. will then apply. But it must by quite clear that if an act or gesture be so explained by the accompanying circumstances that it is quite evident that it does not amount to a confession at all, that it is not an admission of anything: then proof thereof cannot be objected to if it is otherwise relevant to the issue. Now we have it in evidence that Sergeant Wilden told the prisoner to open the box and that the prisoner did 80. Would it under these circum- stauces be possible for the jury to draw any
inferetce as to the ownership of the box from the fact that the prisoner opens it? Oas man orders another to open a box that the other, believing that he is bound to obey does so, surely no inference of ownership lies? The action thus explained becomes perfectly colourless and un- objectionable it is neither an admission nor a confession, for it neither admits nor confesses anything at all. Then Thirdly: There is the evidence of Sergant Wilden. I searched the box and found a watch: and the watch and chain were then put in as an exhibit. Now it was said that the finding would not properly ba proved and that the watch and chain ought not to have been put in as evidence against the prisoner. The evidence was objected to because either the watch was found in conse. quence of an inadmissible confession-or if it was not so found because the sergeant had acted illegally and improperly throughout. I will deal very shortly with this part of the argument. It is clear law that the fact that property has been discovered, where the dis- covery takes place in consequence of an illegal confession may always be proved, See the cases referred to at Phipson's Evidence p. 232 and I would add to them the comparatively modern case of Rex v. Bersiman. 6 Cox 388. If therefore the watch was found in consequence of the confession the finding of it is admissible. I have already said however that in my opinion the watch was not found in consequence of the confession. That being so is there any reason why the finding may not be proved as an in- dependent fact? I do not see that the question of any illegality committed by the police bas anything to do with the matter. I think therefore that evidence of the finding of the watch was clearly admissible. I will now sum up the conclusions I have arrived at on this evid- ence: I find firstly: that the prisoners' statement it, the box belongs to me," was inadmissible. I find secondly that the evidence that the prisoner opened the box was quite unobjectionable: the act of opening being under the circumstances neither confession nor admission, but a perfectly colourless fact, part of the res gesta. Thirdly: The evidence of the finding of the watch was rightly admitted. I know of no legal principl on which it could have been excluded. urged on us by the Attorney General that this statement of the prisoner was in fact no part of the case for the Crown, that he desired to omit it altogether and that had he been allowed to do so. It was still quite competent for the jury to infer from the box being in the prisoner's room, and quite close to his bed that it was in fact the prisoner's property. The Crown not depending on this statement and its almission not being of any possible bensfit to the prisoner he maintained that it was the duty of the court to instruot the jury to disregard it altogether, or even, if necessary, to discharge the jury and order a fresh trial. The Attorney-General further argued and I suppose he felt bound to do so that as this piece of evidence was left to the jury against his ex- press desire-its inadmissibility cannot vitiate the verdict, more especially as without this statement there was sufficient legal evidence to support the finding of the jury. Now this was a matter depending on the point of view of the judge who tried the case. Had the learned Chief Justice taken the view I take of the occurrences which make up this transaction it would have been quite unnecessary to leave this confession to the jury. In my view, of course I may be quite wrong, the question and answer might perfectly well be treated as an isolated inoident inadmissible in itself but on which nothing turned and leading to nothing: in my view again the whole of the rest of the evidence was admissible. The Chief Justice, however, ruled and I understand that his ruling still is- that no part of what happened within the
so in view of the express acceptance by Lord Russell of the clear and unambiguous judgment of Cave J. In any case I accept the law as laid down in. R v. Male and I think it perfectly appli- cable to the circumstances of the case before us. We find here that a pol ce officer with a posse of men goes to the bouse of the scous d in the morning before sunrise and puts to him a ques- tion the answer to which may tend to prove his participation in su alleged murder. Now I am not suggesting that the police sergeant meant to set at all unfairly-Nor again do I suggest that he thought he was doing anything illegal. | He was merely doing what I expect m ny police officers do in similar circumstances. Perhaps he was not even thinking that the prisoner's answer might be used at the trial. Bat he was interrogating the accused under such circum- stances that I am not satisfied that the answer obtained was a voluntary one. Assuming that the box did belong to the prisoner and that he knew the watch was inside it can it be for an instant supposed that had be not been ques. tioned he would have volunteered the informa. tion that the box was bis. It was pressed on us for the Crown that the prisoner was not taken into custody until after "ho had made the statement, and that in the cases on confes. sions a sharp line is drawn between confessions made when the prisoner is and those when he is not under arrest. I admit that the distinction may often be a very real one. Voluntary stale. ments may frequently be made to a police officer by suspected persons who are unaware of his indentity. Or again the circumstances might possibly be such as to make it apparent that the answers of the accused were quite voluntary. In the present cise, however, the distinction seems to lack actuality. It is im- pos ible to doubt that from the moment the police had entered the house the accused was for all practical purposes as much under re- straint as if he had been formally arrested. make no doubt that if he had jumped up and attempted to escape he would have been at once secured and I think that he must have been well aware that be would not be allowed to leave the premises. Under these circumstances it seems to me that the sergeant had no right to put any questions to the accused, or certainly not, with- out previously administering a caution, and that consequently the answers returned by the prisoner cannot be shown to have been voluntarly given and are inadmissible against him: I venture to think that the English decisions when weighed and considered as a whole will not be found inconsistent with the conclusion at which I have arrived. In any case it w uld have required very clear and unambiguous authority to lead me to reject the principle I find laid down in R. v. Baldry, Now the Attorney General argued that even if it were held that the statement of the prisoner was inadmissible per se it should nevertheless have been received in evidence because it led to the finding of the watch the rule being that where property has been discovered in inadmissible confession then the fact of the discovery of the property may be proved with so much of the confession as strictly relates to such fact. I fully admit the validity of the principle which however in my opinion has no application to the present case. Here the confession merely related to the ownership of the box and had no reference whatever to the finding of the watch though it did tend to connect the watch when found with the accused. Had the question been where is the dead man's watch and had the prisoner in reply indicate the box-then no doubt when the watch was found, evidence of the finding and perhaps the statement which led to the finding would be properly admissible. It does not appear that the finding was a consequence of the prisoner's reply because it was admitted for the Crown and indeed it seems probable under the circumstances that the box would have been sea ched whatever the reply of the prisoner had been. On alls grounds there fore I must hold that the prisoner's statement was inadmissible and was wrongly left to the jury. I will next proceed to deal as briefly as possible with the remainder of the evidence which it is said was wrongly admitted; that is, Secondly the opening of the box by the prisoner. I fully admit the contention that acts or gestures may under certain circum- stances be as much a confession as spoken words
consequence
of an
:
i
It was
ACTION TO KESTRAIN AN ADMINISTRATOR.
To Kau, a widow, 22 Caine Road, brought an action to restrain II. Peroy Smith, adminis- trator of the estate of the late Tong Ping E, from declaring that 260 shares in the Central Stores, Limited, did not form part of the estate and an injunction restraining defendant from representing to the directors thereof that the said shares were part of the estate, and that the accounts of the dividend and interests be made up and paid to the plaintiff.
<
Mr. Slade, instructed by Mr. P. M. Hodgson, appeared for the plaintiff and the administrator was represented by the Hon. Mr. H. E. Pollock, K.C., instructed by Mr. Crowther Smith,
Mr. Slade explained that the Central Stores were neutral. They were entitled to retain certain money in respect of calls due, Proceed ing, he said that he would prove that the deceased Tong Ping E lived with the plaintiff, his second concubine, for 20 years and about ten months or so before his death he gave her those shares for her maintenance and executed the . transfers, making a good execution. She kept the shares in her possession for some time but prior to his death she went up to Shanghai laving the shares in his charge as certain calls fell due. He went into the country and shortly afterwards died. On hearing of his death she went into the country and saw the other wires who knew of this transaction, as none of his property in the country was left to her in view of the provision he had already made for her with regard to those shares. She returned to Hongkong and took her certificates to Messrs. Ewens and Harston and the shares were sent for registration but were refused. About this time a family meeting in accordance with Chinese custom took place at the home of the deceased in the country and a divisional paper was drawn up showing the allocation of the deceased's pro- party among the various members of the family. There were three sons, infants, and copies of the paper were given to their mothers to hold.
Mr. Pollock-Surely my Lord that cannot be relevant?
Mr. Slade shall show you very clearly how it is relevant.