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THE HONGKONG WEEKLY PRESS AND
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no circumstances justified in entering without a minal Evidence Act-the reply must be; Cer- warrant the house of a person reasonably | tairly not in open Court. Neither Judge nor suspected of felony if that person is in fact Jury is permitted to interrogate a prisoner within. Nor can I accept the principle that an
upon his trial.
Any perfectly spontaneous officer's only justification would be that he had statement the aconsed may volunteer to the entered, on pursuit after a hue and ery. It is I Court can of course be used against him. It. hope unnecessary to point out the importance of is true that when any person is charged before obtaining a warrant where circumstances permita magistrate with an indictable offence with a of the desirability of an officer's making due view to committal it is provided by Statute demand and clearly declaring his authority. that he must be asked by the magistrate after For the reasons I have given I think the case for the prosecution has blosed-whether that in the
case before us there is no having heard the evidence he wishes to say Bat the proof of any illegal entry and the first objec- anything in answer to the charge. tion therefore falls to the ground, I desire, same Act provides a formal ciation which however, to remark that even if it were begins you are not obliged to say anything olear that the sergeant had in entering the unless you desire to do so. This, a very house committed an actionable trespass that important provision, is intended of course to would in my view be no ground whatever for make it absolutely clear to the prisoner that though the law allows him to speak he is under shutting out any evidence otherwise admissible for what he may have discovered inside. To no compulsion to say anything at all. Let us put an absurd hypothesis: supposing a person go back to the first arrival of the prisoner at burglariously entering the house, had by the the Police Station after his arrest. Here again use of torture forced the prisoner to deliver he may not be interrogated by any one, but it up all his valuables, could it be seriously argued is necessary that he should understand what that, if property tending to connect the is the charge against him. Prisoners however on being charged very often make statements prisoner with a serious crime were thereby brought to light, the court would be bound to of one kind or another and therefore in this exclude from the jury the finding of that pro- Colony at least a formal caution is always administered to them before any statement they perty and the facts attendant on such finding? I think that no such argument would be
may make is taken down. This caution bagias you are not obliged to listened to. So much for the general objection. with the same words “ I will now proceed to examine the obnoxious say anything unless you desire to do so". Can evidence in detail. Taking first of all the words any distinction be made when the prisoner has not been charged and has not been even spoken by the prisoner " It-this box-belongs formally arrested, but is interrogated by a to me." This ofearly is in law "a confession by which I understand any admission whether by Police Officer acting in his official capacity. I think a very illuminating case io this words or conduct, not necessarily an acknow.
connection is that of Regina v. Baldrey (2 ledgment of full guilt, made by the accused, which it is desired to use against him.
Denison 428). Here a constable having arrested admissibility therefore must of
a man on a charge of murder told him the course be
nature of the charge and administered the governed by the general rules applicable to this
"He need not say any class of evidence. I think the principle may be following caution:
did stated sucointly as follows: a confession must thing to criminate himself what he be excluded if it was made in consequence of say would be taken down and used as evidence A confession was thereupon any inducement of a temporal character, con against him ".
made by the prisoner. Connsel for the prisoner nected with the accusation, held out to the prisoner by a person - having some authority in stating that the question was whether the wor is addressed by the constable to the the matter of the accusation and it must also
"acoused" held out to him the promise or be excluded-I think it necessary to add these words—if it was not made freely and voluntarily.
assurance of any wordly advantage; as the The burden of proving the admissibility of a consequence of making a statement; or a threat,
of harm to himself as the consequence of refrain confession tendered in evidence lies on the prosecution, the question of deciding admising from doing so: the judges held unanimously sibility being for the
Its
Court. Now the
cases
question of the admissibility of a confession is constantly arising both before Magistrates and at Criminal Sessions and it is very desirable that the law governing it should be clear and definite. But as a matter of fact, so difficult is it to apply a principle of law to the varying circumstances of individual that many of the most recent decisions the seem to conflict with each other and text books after stating generally the broad principles of the law as the learned authors conceive it, content themselves with marshalling conflicting cases on either side of the line. It is with the very greatest diffidence therefore that I shall endeavour to examine in the light of previous decisions the circumstances of the case before us, in the hope of arriving at a conclusion which I can support by an appeal to legal principles. There is of course no doubt that a sergeant of police falls within, is indeed a typical representative, of the class of persons having authority in the matter of an accusation, Can it then be said that there was here any inducement held out by him to the prisoner ? Did he work on the latter's feelings whether by hope or fear in order to extort a disolosare? The reply must be that there is no evidence of anything of the kind. No expression or threat was profferred and no implication of anything of the sort is raised by the evidence. Then if there was no indu ement, was the confession therefore free and voluntary ? Here I begin to find myself in considerable difficulty. If the answer was free and voluntary it is of course admissible. I have disposed of the question of inducement: therefore putting that question entirely on one side I will ask-must an answer from the accused to a person in authority be held to be voluntary, provided only it was pre ceded by no inducement of any kind? Perhaps I had better go further and enquire when is a person in authority allowed by the law to pat questions to the accused? Leaving out of the question the special provisions of the Cri
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person
[June 27, 1908.
on the ground that the negation of any induce - ment was conclusive evidence that the statements were voluntary. But as pointed out by the learned editors of Cox's Criminal Law Cases in a note to Regina v. Garin, vol. 15, at p. 657, in most of the cases usually cited to establish this proposition the Judges are by no means unanimous and almost all of them express disapproval of the practice while admitting its technical accuracy. In Reg. v. Kerr 8. C. and P. 176 Parke says :-" But I must say that in this particular case there does not appear to have been anything improper in the conduct of the policeman though treating it as a general question I think it should not be done." In Reg. v. Thornton Moody 27, the majority of the judges held the confession rightly received on the ground that no threat or promise had been used, but Best, Chief Justice Bayley, and Holroyd, J. were of the contrary opinion. In Reg. v. Wild Moody, 452, the judges, while unanimously of opinion that the confession was strictly admissible, much disapproved of the mode in which it had been obtained. Now a sergeant of police is clearly an officer of public justice although a I find great difficulty in subordinate one. accepting the position that he may obtain evidence out of the prisoner's own mouth în ș manner of which the Court disapproves and thinks worthy of censure, and that such evidence may be used at the trial against If who has furnished it. the the law really allows such statements to be obtained and the Courts, though disapproving, admit them as a proof of guilt it can not be blamable for a policeman to obtain them. He may, if the protest from the Bench have any weight, be endangering his own professional prospects; but he can conscientiously feel that he is promoting the cause of justice and the safety of the public. Daring the course of a very learned and exhaustive argument many modern decisions werejcited to us on either side. One case in particular, Rogers v. Hawkin, (78 L.T. 656) was relied on both by Mr. Slade and by the Attorney-General. It was argued for the Crown that the decision being that of a Divisional Court was binding upon ourselves. While it is quite clear that the only English judgments binding upon this Court are those of the Privy Council, there is no doubt that we shall examine English decisions with very great that nothing of the sort could be implied from respect and I desire to make a few remarks It is not easy to the words used and they also held that the con. upon the more recent casES.
sesion was rightly received in evidence because reconcile Rag. v. Brackenbury, 16 Cox, 628. the prisoner must have known that he need say (1893) with Reg. v. Gavin, 15 Cox, 657, (1885); or the ruling of Hawkins, J. in Reg. v. Miller, nothing unless be chose to do so. In the course of his judgment Pollock C. B. remarks:--“ A 18 Cox, 54, (1895), with that of the same learn simple caution to the accused to tell the truth, ifed judge in Reg. v. Histed, 19 Cox, 17, (1898). he says anything, has been decided not to be sufficient to prevent the statement made being given in evidence. He is reminded that he need not say anything-but if he says any- thing let it be true. But where the admonition to speak the ruth has been coupled with any expression importing that it would be better for him to do so, it has been held that the confession was not receivable, the objectionable words being that it would be better to speak the truth, bec inse they import that it would be better for him to say something. The true distinction between the present case and a oise of that kind, is, that here it is left to the prisoner as a matter of p rfect indifference whether he should open his mouth or not". Baron Parke said:- By the law of England in order to render the con- fession admissible in evidence it must be Now, I refer to these perfectly voluntary". judgments, especially to that of the Lord Chief Biron, because of the stress there laid the importance of it being brought to the knowledge of the accused that he need not say anything at all, and I find therein the solution of a very difficult problem the proper construction of the word "voluntary" Here then we have a test suggested by the Chief Baron and Mr. Baron Parks. Applying that test to the materials before us, did the prisoner in this oase make voluntary confession? Did he understand that when Sergeant Wilden asked him whose the box was, he was at liberty to answer or not as he thought fit and that if he replied the words of his answer would be proved against him at his trial? There are a number of earlier cases in which confessions made to the police or other persons in whose custody they were by the accused have been held admissible,
оп
Yet these four decisions were all delivered within the space of 13 years and were daly re- When I come to compara ported in Cox. Regina v. Male, (1893), 17 Cox, 689 with Rogers v. Hawkin, 78 C.T. (1898), 655, I find that Lord Russell in giving judgment in the latter case states that be regards the observa- tions of Cave, J. in Regina v. Male as perfectly just in the circumstances. Now the two deaf- sions seem almost hopelessly at variance and it is by no means easy to find any essential point of differ: noe in their circumstances. If it were impossible to reconcile these two decisions I would merely say that I prefer the reasoning of Mr. Justice Cave to that of the Divisional Court. The former is in conformity with the principle recognized in Reg. v. Baldry and sup. plied a clear and intelligible rule of universal application. But possibly, in the later case the relative position of the parties may have had considerable weight with the Judges. The owner of the horse and cart might have very well been aware that he was not under any compulsion to answer the question put to him and if so his replies might be held to be free and voluntary. Again it does not appear, that, was present, the though a police oor stable accused was at any time under arrest, or detention, or in any danger of anything of the kind. The charge again was for a "petty offence ponishable summarily with a maximum fine of £5;
the accused was presumably a householder and the usual mode of proceeding would be by summons in the first instance. So on the whole I think the Court might well have held that the defendant was a free agent when he made the statement. I can see no other way of reconcil- ing the decisions but I have endeavoured to do
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