Defendant Was Denied ‘Important Legal Right’

Press, Volume CVI, Issue 31085, 14 June 1966, Page 13

Defendant Was Denied ‘Important Legal Right’

The defendant had been denied one of his most important rights by Inspector P. R. Silk—that of calling a solicitor when under arrest, Mr H. J. Evans, S.M., said in the Magistrate’s Court yesterday when he found Bruce Edward Jesson, aged 21, a law student at Canterbury University, guilty of wilfully damaging the fencing and walls at the Addington Raceway on April 22 and of attempting to damage the Royal dais in Cambridge terrace.

The Magistrate was giving a reserved decision. Jesson, who pleaded not guilty to both charges, was discharged without conviction under section 42 of the Criminal Justice Act upon payment of restitution of £lO, costs of £3 and witnesses’ expenses.

The charges arose out of the painting of slogans opposing the visit of the Queen Mother at the Addington raceway on the night before she was to attend a trotting meeting there, and an attempt to do the same on the dais in Cambridge terrace which had been erected for a public reception.

Mr B. McClelland appeared for Jesson and Mr C. M. Roper prosecuted for the police. The charges were heard on June 9. Mr Roper withdrew the original charges that Jesson was a rogue and a vagabond in that he frequented Victoria square with felonious intent and that he unlawfully entered the Addington raceway with intent to commit a crime. After reviewing the evidence the Magistrate said that in terms of the facts, as found, the accused had been proved guilty beyond reasonable doubt on each of the two charges. Defences Rejected The Magistrate rejected the two legal defences raised by Mr McClelland. The first was that section 298 of the Crimes Act, under which the first charge was laid, was not appropriate to the circumstances and the second that the prosecution had failed to prove affirmatively that the damage done did not exceed in value £2O. “I now turn to what took place between the defendant and the police from the time the police arrived at the scene at the royal dais and found the defendant and Goring there,” the Magistrate said. “I do so not because I think the defendant’s guilt or innocence turns upon anything which was said or done there, or afterwards at the police station, but because Mr McClelland submits, and submits strongly, that Inspector Silk’s treatment and handling of defendant during this period was in several respects wrongful and contrary to the standards set by the Courts .for observance by the police. “These are matters touching the right of the individual on the one hand, and the good name of the police on the other, and therefore I have deemed it my duty to look at them. Principal Allegations “The principal allegations against Inspector Silk are these: that, without arresting the defendant, he detained him, searched him and took him to the police station—all without his consent; that he wrongly questioned him, or cross-examined him as, it is said, by means of information and admissions previously and separately obtained from Gor-

ing; and that he denied him recourse to a solicitor.” The Magistrate said that he had very carefully considered the recorded evidence, especially that of Inspector Silk. “I comment at the outset that the defendant did not go into the witness box. Of course he was not bound to. I am not entitled to hold anything against him on that score, but it inevitably makes my task of judging Inspector Silk’s conduct more difficult. There was some evidence from other witnesses about these matters, but not much. Most of the story came from Inspector Silk himself, first in examination and then in cross-examination by the defendant’s counsel.” The first crucial question was whether the. defendant willingly submitted to questioning and willingly went to the station when asked to, for the law was plain that he could not be required to answer anything, nor could he be compelled to go to the station. “Went To Limit” The Magistrate then read the “critical points” from the evidence and said he had referred to the relevant cases on the topic, in particular to the judgments of the English Lords of Appeal in Christie v. Leachinsky. “The view I have formed is that Inspector Silk went to the full limit, but I am not prepared to say that he overstepped it,” the Magistrate said. Dealing with the question of the Inspector’s search of the defendant the Magistrate said that both Constable Kington and Goring said that he did. The inspector denied it, though he admitted recovering the tin of paint from his pocket and to “frisking” Mm. The evidence indicated that the defendant did not submit to search. “In the circumstances it would seem that the inspector had no right to take the tin of paint, and no right to search, if in fact he did search. And yet no less an authority than Lord Devlin, until recently an English Lord of Appeal, had said that the police power of search under English law is haphazard and ill-defined. "Whether that characterises the position in New Zealand I do not know, but I am not prepared to say that Inspector Silk’s action in this respect was, in the circumstances. a serious invasion of the defendant’s rights.” Dealing with the complaint that the inspector had committed a breach of rule eight of the Judges’ Rules by putting to the defendant the statement, which he had taken previously and separately from Goring, the Magistrate said he thought it was sufficient to say in answer that rule eight forbade this being done between separate accused who had already been charged with the same offence. Here the defendant had not yet been charged. The final complaint by Mr McClelland was that the Inspector denied the defendant recourse to a solicitor. “I think, indeed I have no doubt, that this particular complaint, is well-grounded. I consider that the reasons by

i which Inspector Silk seeks to justify his action are unacceptable,” said the Magistrate who quoted from the evidence in which the Inspector said he broke the rules. “This admitted abridgement of a valuable personal right is essentially serious, and may well have been serious in the particular circumstances. As a leading English Judge Lord Simonds said in Christie v. Leachinsky: “ ‘Arrested with or without a warrant, the subject is entitled to know why he is deprived of his freedom, if only in order that he may, without a moment’s delay, take such steps as will enable him to regain it.’ “I am sure that it would have been the defendant’s desire at midnight on Friday, April 22, to regain his freedom at the earliest possible moment,” the Magistrate said. “He had the right to move In that direction by consulting a solicitor and he had that right denied him.” Neither Her Majesty’s visit itself, nor any fears entertained by the police that trouble might be expected from dissident elements generally, could justify this denial. The Magistrate said he did not accept the idea that the second of the two original charges was laid by the police in order to ensure that the defendant appeared before the Justices on the Saturday morning in circumstances which disqualified him for bail as of right It was true that the Justices, in their discretion, refused bail, and that the defendant spent three days in gaol.

The answer to Mr McClelland’s complaint was that the second of the present two charges would not, any more than the earlier one, have given the defendant bail as of right He would make allowances for the defendant’s three days’ imprisonment in fixing sentence. In deciding on penalty, the Magistrate said, there were three broad principal factors wMch he should take into reckoning. First, the damage which the defendant caused. Second, the infringement of one of his important rights at the hands of the police. Third, the fact that, apart from the means he adopted, he was not in breach of the law, but was exercising one of his freedoms which the law guaranteed to him—freedom of expression. Any deterrent sentence would be rendered completely unnecessary by the esteem and affection in which the Queen Mother, and of course the Sovereign herself, were held by the overwhelming majority of New Zealanders. “Justice will be done if, subject to certain conditions, I discharge the defendant without conviction under section 42 of the Criminal Justice Ac*,” the Magistrate concluded.