STATEMENT TO POLICE

New Zealand Herald, Volume LXIX, Issue 21328, 1 November 1932, Page 11

STATEMENT TO POLICE

ADMISSIBILITY QUESTION REJECTED as evidence RULING GIVEN BY JUDGE A written judgment prepared by Mr. Justice Smith in August at the conclusion of the first trial of Heta Fred Gardner, charged with the murder of George Crewe at Ruatangata, was released yesterday after a jury had returned a verdict of not guilty at the retrial of the accused. The jury disagreed in the first trial, His Honor's judgment being withheld pending a decision at the second hearing. The judgment stated:—"The Crown Prosecutor tenders in evidence a statement mado by the accused on May 30, 1932. The statement amounts to a confession by the accused of the crime of murder with which he is charged. Counsel for the accused contend that the statement is not admissible i:ra evidence upon the ground that it- cannot in law be regarded as a voluntary confession. Alternatively, they submit that, by reason of th e circumstances under which the statement was obtained, the presiding Judge should exercise a discretion to exclude the statement as evidence in the case. "In my opinion, the statement cannot, in law, be regarded as a voluntary confession. It is clear law in England that no statement by an accused admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The English rule is also stated in the form that a confession made after suspicion has attached to, or a charge has been preferred against an accused person, and which has been induced by any promise or threat relating to the charge laid, and made by a person in authority, is deemed not to be a voluntary statement, and is inadmissible. Laws in New Zealand "In New Zealand, in all cases where a promise or threat h a s been used, tho provisions of section 20 of the Evidence Act, 1908, are applicable, with the result that, even though a confession is induced by a promise or threat, it i 3 admissible unless the Judge is of the opinion that the inducement offered or made was in fact likely to cause an untrue admission of guilt to be made, In my opinion, this is not the only rule to be applied in excluding a confession in New Zealand. Where no promise or threat can be said to have be£:n used, yet if a violent procedure has been adopted when the confession was obtained and the Crown cannot show that the confession was not induced by such violent procedure, the confession then obtained cannot, in my opinion, be regarded as free and voluntary." After quoting an authority, His Honor said his view was 'that the obtaining of a confession by violence, including therein a violent method off procedure, was not governed by section 20 of the Evidence Act because the section -was limited to cases where r. promise or threat had been made. Accordingly, he> had only to consider whether thß Crown had shown that the confession it tendered in evidence was not induced by the violent procedure adopted by its officers. "In my opinion, that has not been shown," the judgment continued. "The accused boy was aged in May last some 15 years and 7 months. He is a Maori, and is described by the medical experts as feeble-minded, though not insane according to the McNaghten rules. He has the mentality of a child of nine or 10. His moods are apt to change very quickly; he is afraid of the dark. On May 28 and May 29, he was interviewed by Constables McKie and Beasley respectively, and treated in a kindly manner by them. They took statements from him, and, although it appears that the youth had committed petty thefts,- it was not until the Saturday afternoon, that he implicated himself in these thefts under his proper name in a statement to Constable Beasley. Boy Taken to Police Station "He said, 'I want to tell you everything.' The constable told him to tell the whole truth, and that he had nothing to be afraid of. Notwithstanding this exhortation, the boy, if he had then committed tho murder, said nothing about it. It appears to nie that he showed sufficient intelligence, if he had committed the murder, to take care to protect himself from detection by any voluntary statement of his own." His Honor added that, on the Saturday evening, the boy was taken to the house of a. Mr. Whareumu as a place of abode, or even of quasi-custody, until a sitting of the Children's Court. He was in bed asleep on the Sunday when, shortly after 11 p.m., he was wakened by Whareumu in the presence of Constables Beasley and McKie, tho latter being in uniform. Beasley told the boy he wanted him to come to the police station with him. While the boy was dressing, Inspector O'Hara and DetectiveSergeant Robertson came into the room. •The boy, when dressed, had a handcuff placed on one wrist, and the other end of the handcuff was held by the detective, continued His Honor. The party proceeded for half-a-mile down a track surrounded by scrub, the boy being held by the detective by the handcuff. Ihe boy had not been charged with any offence, and the reason for the procedure was said to be to prevent the boy s escape. His Honor thought the boy was clearly as much under restraint as if ho had been formally arrested. Interview with Detective The detective had asked the boy whether he had anything more to say or whether he wished to alter statements already given. The detective also said he told the boy, in effect, in the first, three minutes, that he need not say anything unless lie was willing, but tho detective would not pledge himself to the words be used. The boy was not told that he need not say anything, or answer questions. At 12.30 a.m., the detective commenced to type the boy's statement. Although it was clear that, at this time the detective must have known that the ' boy was to be arrested and charged with murder, no warning of any kind was given. On tho contrary, the typing of the statement was not completed until 4 a.m. Inspector O'Hara was present continuously, but he had not been called to give any evidence as to the manner of the interview. Constables Beasley and McKie were in and out of the room while the statement was being taken, but the only evidence as to the nature of the interview was that of Detective Sergeant Robertson, who was no doubt doing his duty as he understood it. On the other hand, the officer in charge of the police party, whoever he was, plainly intended that the boy should bo examined at the police station without the presence or aid of any person other than the police. No threat, in the ordinary sense of the word, appeared to have been made, hut His Honor's view was that the arrival of the four men in the boy's bedroom, handcuffing the boy and taking him to tho police station, where he was suurounded by none but police officials, and the exertion there of pressure for details of a story, amounted to 'the obtaining of a confession by a procedure which must be regarded, for the 'purposes of the matter, as a violent procedure His Honor quoted further authorities, and said that, for the reasons he had given, the statement, which amounted to a confession, could not be given iu evidence for tho prosecution.