CONFESSION AND CAUTION.

New Zealand Herald, Volume IV, Issue 1190, 6 September 1867, Page 4

CONFESSION AND CAUTION.

To the Editor of tho New Zeaxaxd Herald. £?ib, —I havo been requested to writo again on " practice," by parties much interested in tho matter. I have consented to do bo occasionally, if it meet with your approbation. On the present occasion, I have selected the subject of " confession and caution." Wo find from witness's depositions, almost daily mado in the Polico Court, that tho practico is, that as soon as a prisoner is taken into custody, ho is takon to the lock-up, secured, cautioned by tho apprehending officer, then questioned directly touching tho charge for which ho is then nndor arrost. This practice is condemned by the highest authorities at homo as most unjust and unjustiQablo, as I shall endeavour to prove. Tho ease I have chosen in substance is to the following effect: Tho prisoner was apprehen:lod, takon to the lock-up, cautioned in the usual manner, and then asked if he had changed any notes. Baron Brunwell in a late case of "arson," in summing up, said that the policeman in questioning the prisoner, had acted moßt unjustly and unjustifiably. It was very unfair to assumo tho guilt of a prisoner, and then to question him. It was no part of their duty. I have no such power, and is an ignorant policeman to have the power of tubing such questions? His XiOrdahip told the jury that : they were to bo quite sura that tbo prisoner did not say so out of fright. Thoy must bo satisfiod that tho prisoner did it carefully. The only evidence was tho prisoner's own confession, and that extorted from him.

In another case, (my private notes do not givo tho name of the learned judge) his .Lordship said that tbo amount of interference which the polico had exhibited in obtaining the testimony of a witness (witness hesitating about tho identity), ono of tho policemen told her that what she had to say, she had better say to him privately, met with his Lordship's high displeasuro.

Again in Teply to an inspector, -yvhero tho prisoner got tho alum water from ? Mr. Justice Mollor intorposing told tho witness that asking such a question he had trenched on dangerous ground. It was, ho said, a very serious and a very catching question. It was not according to our notions of right to ask a question, tho answer to which might criminate a person in the position of the prisoner to whom it was put. It waß a very important question, and had better have been omitted.

Lastly, in a charge of embezzlement, the constable who took tho prisoner into custody Btatcd that ho cautioned him as to making any atateraont. Magistrate remarked that tho polico appoarod to have most extraordinary instruotionß. It -was the duty of tho police to shut their mouths and to liston. They had no power to give a caution. If tho prisoner thought proper to mako a statement voluntarily, it was tho duty of tho polico to hoar it. It was no part of polico duty to take the functions of a magistrate. They Bhould simply take the charge, and say nothing'. I trust I have thus fairly, and impartially shown thejbad tide of the picturo, and on tho other sido, exhibited the proper duty to follow, for guidanco. Mr. Lodge in cautioning a prisoner at the propor time,_ nlwaysroads tho priutod form, as ho is I am certain fully aware how precious evon tho smallest part of a minute may be at that momentous timo'to the prisoner. Taylor in his admirable work on " Evidence" recommends l'or committing Magistrates not only to adopt tho form sot out in tho schedule to tho Act, but to give tho prisoner in all cases tho second caution as well as the first, viz,, provided always " You are clearly to understand, that you havo nothing to hopo from any promise of favor, and | nothing to fear from any threat, which mny have been holcton out to you to iaduce you to mako any admission, or confession of your guilt, but whatever you shall now say, may ho given in ovidonco against you on your trial, notwithstanding such threat, or promise."—l am, &c., J. H. Horne. J P.