Hough v Ah Sam [1912] HCA 78

Hough v Ah Sam [1912] HCA 78 - HCA 1912 case summary — Zoe

[24]

"From Singapore man bring it from steamer." The magistrate ing at Fremantle was, I think, entitled to take notice of the act that ships trade from Singapore to Fremantle. hat was e only evidence of importation. On appeal to McMillan J., he thought that the evidence was inadmissible, relying upon a sup- posed decision of Hvle J. in the case of R. v. Berriman (1). I Kk that the learned Judge was misled by the headnote in that It did not decide that evidence of admissions made by a soner to a constable in answer to questions is inadmissible, although it contained a strong expression of opinion from that "learned Judge as to the impropriety of asking such questions. here is no decision that I am aware of that such evidence is nadmissible. I should like to take the opportunity of saying on this Bench what I once said on the Bench of the Supreme Court 'of Queensland, that is to say, that I entirely accept the statement of the law made by Sir Alfred Stephen C.J. in the case of R. v. Behjerion (2) decided in New South Wales in 1870, where the same

point wastaken. Sir Alfred Stephen said : - " The first and second "points are not arguable. There is nothing in law to prevent a constable from putting questions to a prisoner; and whatever the
prisoner says in answer may be given in evidence against him, unless the constable has held out some threat or promise, or made some false representation to the prisoner beforé questioning him. The prudence or propriety of putting such questions is another matter. Some very eminent Judges have censured the practice, as an attempt to extract from the prisoner admissions which may sure his conviction. Other Judges equally eminent have expressed opinions quite the other way. For my own part, ooking to the true ends of justice - - the conviction of the uilty, and the protection of society - I cannot see in the practice an iything inconsistent with the duty of a constable, or unfair to e prisoner. 'Where were you at such a time?' 'Where did you get these articles?' 'How do you account for the blood upon your clothes?' Such questions as these may, in my opinion, be properly put; and it is possible that the prisoner's answers may emoye the suspicions on which he was arrested, and lead to his

[28]

In my opinion, that was then, and is still, an accurate state- ment of the law. The recent decision of the Court of Criminal Appeal in England in the case of 2. v. Best (1), is to the same effect. A judgment to the contrary effect had been given by 4. L. Smith J. in the case of R. v. Guvin (2), but the Court of Criminal Appeal held that it was not good law. I think, there- fore, that the ground upon which McMillan J. allowed the appeal was a mistaken one, and afforded no ground for quashing the conviction. Mr. Solomon now seeks to support the order on other grounds, and I think he is entitled to do so if he can. He contends that there is no evidence that the opium found in the defendant's possession, although there is evidence of its having been imported, was imported at a time when the importation was prohibited. The date of the prohibition was 30th December 1905, although sec. 2338 of the Act was not made applicable to it until 31st December 1910. The question is whether the magistrate could reasonably come to the conclusion, on the faets before him, that the opium had been imported since 1905. As I have said, the prémises were an opium smoking establishment, or den, as it is called, one tin of opium had been recently emptied, and another tin was nearly full. The importation of such opium had been prohibited for more than six years. Is it likely then that the opium found was old stores imported before 1906 and still unused? The magistrate was entitled to ask himself that question; he was entitled also to take into consideration the appearance of the opium, the fact of its being concealed, and the further fact that the accused at first strenuously denied having any opium, and said that the officer's predecessor, when he had searched the premises, had never been able to find any. Under these circumstances I think that the magistrate was entitled, if the defence that the opium had been imported before 1906 was set up before him (which seems doubtful), to. come to the

[37]

Hover Au Sam. Hicarns J. Iam of the same opinion, and I shall merely quote Missins J. snother case in support of the view of my learned brothers as to the admissibility of the evidence. I refer to the case of Rogers v. Hawken (1). In that case an officer of the Royal Society for the Prevention of the Cruelty to Animals prosecuted a man for cruelly ill-treating animals. The officer said : "I saw the defen- dant. I was in uniform. I said to him: 'Is it true your carman told the police you sent the animal out, and knew it was lame?' to which the respondent replied : 'Yes, I sent Yost out with it." I said nothing whatever to the defendant as to the likelihood of proceedings." I cite the case particularly because it contains com- ments on R. v. Male and Cooper (2), to which Mr. Solomon referred. Lord Russell C.J. in his judgment said (3): - * This is, of itself, a very simple point, and I think the evidence ought to have been admitted by the justices, but I must refer to the case of R. v. Male and Cooper (2), and to the judgment of Cave J. in that case. I must not be understood to say that the obser- vations of the learned Judge in that case were not perfectly just and applicable to the circumstances of that case, but if they are to be taken as laying down the general proposition of law that a statement made to a policeman by a defendant who has not been previously cautioned, provided that statement: has not been induced by fear of reward or punishment, is legally inadmissible, I must differ from the conclusions of the learned Judge." Speaking of the case before him, Lord Russell said (3): - " There is no question of any inducement of confession by any threat or promise of reward in this case. I think, therefore, the evidence is admissible, but if it goes no farther than it does, I think the justices would be slow to convict upon it." Matthew J. said (3):

*There is no trace here of any inducement of a confession by threat or promise of reward, and no evidence of any attempt on the part of the appellant to manufacture evidence. Nothing is

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Judgment (47 paragraphs)

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