408
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[June 37, 1908. Prevention of Cruelty to Animals, in company with this policeman asked the defendant ; it true that your carman told the police you sent the animal out and knew it was lame" to which the defendant answered “Yes, I sent Yoat out with it." Nothing, was said as to the likelihood of proceedings: but the dociety's officer was in uniform.
The Divisional Court held that R. v. Mal↑ must not be taken to lay down the proposition that a statement of the accused made to a police constable without threats or inducement is not in point of lawe admissible. If there were such a rule the state- ments of innocent persons might be excluded. It is to be observed that this does not specially allude to answers to questions put by the police- man: but in view of its application to the facts of the case it may be presumed that it covers this ground. The Court held that the evidence so obtained was admissible on the ground that was no threat or inducement held out, there presumably by the policeman. In R. v. Miller à detective inspector had called upon the prisoner, who was suspected of murder, and had + 1 am going to ask you some said to him questions on a very serious matter, and you He had better be careful how you answer.' proceeded to question him as to his movementa on the night of the murder and the following morning, had asked him to produce his clothes and to account for the bloodstains on them; and after the conversation he took him into custody on a charge of murder. Hawkins J. admitted the evidence on the ground that there was no threat, nor any duress exercised towards him, that they were voluntary statements which the prisoner was ander no obligation to make. He added that it was impossible to discover the facis of a crime without asking questions, and these questions were proporly pat. I wonder whether the explanation of this case is that the detective was in plain clothes. Bat I am not entitled to assume this. Some things I think are clear: that a statement made by a person to a policeman before he is charged is admis-
THE HONGKONG WEEKLY PRESS AND had had on the previous day had not been, confessions made to police constables; and this removed: after my ruling the evidence of the divides itself into two parts:confessions made fact of finding could not now be pat after arrest and charge, and those made before independently of the circumstances, and it was charge. Some of the cases deal specially with therefore in my opinion necessary to elicit the the former case: e.g. R. v. Histed, where whole facts, in order that the question to be Hawkins J, said "In my opinion when a pri- ultimately discussed, and which is now being soner is once taken into custody a policeman discussed, should be properly raised, by having should ask no questions at all without adminis all the facts in evidence. It was suggested tering previously the usual caution." This that the evidence of the Anding of the point is not involved in the present case, and watch was on the same footing as if the may be taken to be as above stated. The law, Sergeant had Baid "From information I so far as I can gather, seems to have been first received I found this watch ". I do not think laid down by A. L. Smith J, in R. v. Gavin: it | that there is any analogy between the two cases, was not adopted by Day J. in B. v. Brackenbury, The Attorney General insisted in his argument but from the note to R. v. Histed, it appears that that it was the duty of the presiding Judge to | Hawkins J. approved of it. The notes to Cox's have made up his mind on the question, and not reports are sometimes valuable because, I think to have had any doubts. I am sorry I cannot I am right in saying, so far as circuit cases are agree. The doubts which I had at the trial con- concerned the reporters sometimes put into a tinned for a long time and will not be removed footnote something which the Judge has himself till the study of the decision necessary for giving said to them. The note to R. v. Histed is clearly this judgment was complete; but they have at of such a nature. I make this remark because in length been removed: and I am satisfied that
the headnote it is said “Persons about to be in following the course which is customary in
taken into custody should not be cross-examined such cases, I was right: that is to say, to allow by the police." I refer to this matter also the evidence to be put in, and either state a because the Attorney General contended that case for or reserve the point for argument the emphasis was
once taken into before the Fall Court, in the event of custody," and be argued that, therefore, before the verdict being against the prisoners.
a person was taken into custody any questions The advantage of this course is manifest: for could be asked by the police. I am very doubt. to have excluded the evidence mi, ht have led to ful whether this is so, but it is the question we an acquittal, and the Crown would then be have to decide. I shall revert to R. v. Histed without a remedy. To admit it might lead to a again presently. Turning to R. v. Gavin there conviction, and the prisoner is provided by law is something very obscure about the report with a remedy. It is clear that judgment will Smith J. said "A prisoners mouth is closed not be deferred in order to allow a point after he is once given in charge. and he ought of law of this nature to be argued, unless the not to be asked anything.". Then comes this fact admitted in evidence is of such importance sentence " Before the prisoner is charged or that in the opinion of the presiding Judge the is in custody he may be asked what he has to verdict hangs on it.
or in It was apparent that the say in explanation Crown attached the utmost importance to the finding of the watch in the possession of the prisoner; it was clear to my mind that the verdict must have depended on it; and I have therefore no hesitation in saying that if the evidence was wrongly admitted the conviction should be quashed; if it was rightly admitted, that the conviction should stand. It is clear also that this applies to all three prisoners, for although the watch was found in the possession of No. I prisoner, the effect of it would be to set up the story told by the informer, that is to say, his story not only against No. 1, but against all three. The Attorney General while insisting that only the evidence elicited from Wilden by the Crown should have been put
angwer to the charge." I do not see how a man can answer or explain a charge before he is charged. The question what the police may do in the way of of enquiry before charging a man has been dealt with in a few cases of some importance, and the issue before us is stated in them very distinctly. Cave J. gave a deliberate opinion in R. v. Male: and this derives additional force from the fact that it was given in the same year, and after he had delivered the judgment of the Court of Crown Cases Reserved in R. v. Thompson, apparently being chosen by the other Judges to do so, It was afterwards approved in general terms by Lord Russell C. J. and Matthew J. in Rogers v. Hawken. The facts in R. v. Male were as follow Two women,
sible: that a statement made to a detective in
to the jury, said that the case he had proposed Male and Cooper, were indicted for perform195 | in R. v. Male, be applicable to the facts of R. v.
to put was that the mere finding of the watch in a box by the bedside of No. I was sufficient to justify the jury in coming to the conclusion that it was in his possession, and so to convict him. I protest emphatically that is not the sort of evidence on which men can be convicted of murder-in such a case as this assuredly not, for the watch was found 18 months after the murder, and the rest of the evidence, as I pointed out to the jury, was of the shallowest description. Sergeant Wilden's view was I think sound: he thought that the finding of the watch should be accompanied by some evidence connecting its possession with the prisoner. And he elicited this evidence. The question we have now to decide is whether having elicited it in this way it is receivable in evidence or not. I must now do the best I can to unravel the law. It was contended by the prisoners' Counsel that as the initial act of Sergeant Wilden was a trespass and therefore illegal, the whole of the evidence thus obtained was tainted and should have been excluded. I have on a recent occasion expressed the view that the law cannot sanotion the doing of a wrong in order that good may come. But whether this can be applied to this concrete assuming the premise to be sound, I am in doubt. No authority was cited which went to that extent and I must therefore exprees my opinion that their argument cannot be sup ported. With regard to confessions the law can be easily stated. "The rule laid down in Russell on Crimes is that a confession, in order to be admissible, must be free and voluntary, that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence," This relates to confessions made to ordinary persons. The question is how far it applies to.
case,
"The
plain clothes who has entered into conversation with the prisoner subsequently arrested, even though he has been led on, as distinguished from making a threat or holding out an in- ducement, would be admissible thirdly, that if a policeman in the course of his general enquiries gets an answer from a p rson which is tantamount to a confession then that this also is admissible. But this does not bring the dividing line into very clear prominence: aud I put this question-Would the rule laid down an illegal operation on a third. This woman
On the Miller? The only distinction apparent on the had made a statement to the police. arrest of one of the other women the inspector face of the reports is that Miller was not arrested when the questions were put, and the cautioned her, and on the road to the station asked her questions, based on the statement of woman in R. v. Male was in custody but not the woman already made. The evidence of what charged; There is this difference to be noted in she had said was disallowed. The important the judgments: that whereas in R. v. Male, reference is made to the duty of a police con- parts of Cave J's Judgment are these. police had no right to ask questions, or to seek stable broadly, in R. v. Maller and Rogers v. laid on the fact to manufacture evidence, or to charge the pri- Hawken emphasis is
of the absence of soner with an offence for which they had no
any inducement oc warrant. It would be monstrous if the law threat: so that the law would seem to be that before a person is in custody a policeman may permitted a police officer to go, without any one one being present to see how the matter was ask any questions he likes, and only comes conducted, and pat a prisoner through an auder the general law, the answers being examination and then produce the effects of admissible in the absence of any threat or that examination against him. Under th. se inducement. I cannot honestly say that I circumstances, a policeman should keep his believe this to be the law; but it is the only mouth shut and his ears open. He is not statement which recoveiles all the decisions. bound to stop a prisoner in making a state- On the other band it is worth while enquiring ment; his duty is to listen and report, what may be the genesis of the rale as to police but it is quite another matter that he should constables such as it is given in R. v. Male. I pat questions to prisoners. A policeman is not cannot help thinking that it is the concrete embodiment of the law as to threats or induce- to discourage a statement, and certainly not to encourage one.” I may note in passing that ments: the offloor of the law embodying the one of the effects of Sergeant Wilden's examina-threat of the law. There is a passage in Sir tion was the discovery of the watch in the possession of No. 1 prisoner Lord Russell C.J în Rogers v. Hawken said that these observa-
" tions were in R. v. Miller said he did not express dissent perfectly just"; and Hawkins J. from any of the cases cited, among which was R. v. Male, But in both these cases statements elicited by the police from the prisoners before they were arrested were admitted. It is there fore clear that we ought to be able to find the true rule between these two sets of cases. animals. The defendant's servant, Yost, had Rogers v. Hawken was a case of cruelty to made a statement to a policeman incalpating An officer of the Society for
his master.
Fitz-James Stephens' General View of the Criminal Law of England which would warrant this view-" l'here are, however, other interests important is the popularity of the law. It must to be considered. of which one of the most
never be forgotten that the poor and ignorant are the persons most affected by the administra- tion of criminal justice; and the ministers of justice, with whom they have most to do, the police, have just the amount of intellectual and social superiority to day-labourers, and the objects of peculiar jealousy, and renders it lower class of mechanics, which makes them the desirable to take special precautions against abuses of their power." But this would apply
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