LAW REPORT.

New Zealand Police Gazette, Volume XLI, Issue 3, 26 January 1916, Page 54

LAW REPORT.

(“ Times Law Reports,” Vol. xxxii, page 97.) [Court of Criminal Appeal.—(Lord Reading, C.J., Avory and Lush, JJ.) — Bth November, 1915.] Rex v. Gardner. Rex v. Hancox. Criminal Law — Evidence—Prisoners in adjoining Cells — Conversation Prisoners charged jointly Statement by One —Implication of Other — Admissibility, Where two persons are charged with being concerned in the same offence and are put in adjoining cells and the police overbear a conversation between them, evidence of the conversation is admissible at the trial. Where two persons have been separately arrested and separately charged with an offence and have subsequently been put in the dock together and oharged jointly, a statement made previously by one of them behind the back of the other and implicating him ought not to be read in the presence of that other. Nevertheless, any material statement or confession by the other in answer to such statement is admissible in evidence, but the Judge ought to reject it if he is satisfied that it was read over to the prisoner for the mere purpose of getting an admission from him.

These were appeals against convictions. The appellants had been convicted at the Worcestershire Sessions on a charge of housebreaking. Gardner had been sentenced to twenty months’ hard labour and Hancox to twelve months’ hard labour. .

Mr. Marchant appeared for the appellants; and Mr. Milward for the Crown.

The faots of the case are sufficiently stated in the judgment below.

The following cases were referred to in the course of the argument: Rex. v. Christie ([1914] A.C. 545; 30 The Times L.R. 471); Reg. v. Male and Cooper (17 Cox C.C. 689); and Reg. v. Hirst (18 Cox C.C. 374). Mr. Justice Avory, in delivering judgment, said that it was necessary to consider the cases separately. Both appellants were charged with a man named Thomas with being concerned in housebreaking. Thomas pleady “ Guilty.” None of the stolen property was traced to any of the three ; but, as against Gardner, there was evidence of identification which, perhaps, by itself would have been sufficient to support his conviction. There was also evidence that when he was in a cell at the police-station next to that in which Thomas was, Thomas and he had a conversation, to which the police listened, and which contained expressions enough to justify a verdict of “ Guilty.” Counsel urged that the conduct of the police ought to be condemned in listening to what they were not intended to hear, and it was suggested that Gardner and Thomas had been purposely put into adjoining cells in order that they might talk. The Court could not possibly lay down that it was not right ever to put prisoners so charged in adjoining cells or that the police ought not to listen to such conversations. Indeed, it had been said that the duty of a policeman was to keep his ears open and his mouth shut. There was no ground, therefore, for saying that evidence of the conversation was not admissible ; the jury were warned that they were to be careful in accepting it, but they nevertheless found the appellant guilty, and the Court could not interfere. The conviction must therefore stand.

With regard to the appellant Hancox, there was not sufficient evidence to justify his conviction without evidence, which was tendered, that Thomas, when taken into custody, had made a statement implicating Hancox, and that when Hancox was put in the dock side by side with Thomas the statement was read over to him, and he practically admitted its truth. That statement by Thomas was got in pursuance of a practice under which, after men had been separately arrested and separately charged with an offence, they were put in the dock together and charged jointly, and a statement was read in the presence of one of them which had been made by the other behind his back. That practice was to be condemned ; it was a form of cross examination of a prisoner after he had been taken into custody. But, notwithstanding that the practioe had been more than once condemned, the authorities said that where the practice had been followed, and the prisoner in answer to the statement read to him made some material statement or confession, that statement or confession could not be excluded. Some day the authorities might have to bo reconsidered ; the Court here could not say that an admission obtained in this way was inadmissible ; but they thought that the practice was reprehensible and should be discontinued. Granting that Hancox’s admission here could be accepted as evidence, it did not, in the opinion of the Court, amount to enough to justify the jury in acting on it; so the conviction in this case must be quashed. If a Judge at the trial of a prisoner had evidence tendered in the form of a statement which had been read over in this manner to the accused, he ought to reject it if he was satisfied that it had been read to the prisoner for the mere purpose of getting an admission from him. Solicitors —The Registrar; the Director of Public Prosecutions.