|
Hong Kong Law Reform Commission |
2.1 To assist readers in considering the appropriate options for
reform, this chapter looks at the laws and procedures relating to the admission
of confession statements in a number of other jurisdictions. We are much
indebted to the English Law Commission, the Scottish Law Commission, the New
South Wales Law Reform Commission, the Office of the New South Wales Director of
Public Prosecutions and the Attorney-General’s Chambers of Singapore for
supplying information on the laws and procedures in their respective
jurisdictions.
2.2 The Australian Law Reform Commission (“ALRC”)
conducted an extensive study of the law of evidence and issued an Interim Report
in 1985.[23] The Interim Report
recommended, inter alia, it should be “a matter for the trial
judge whether the jury should be excluded where questions arise as to the
admissibility of evidence of
admissions....”[24] The
ALRC adopted these interim proposals in a final report on the subject published
in 1987.[25] The New South Wales
Law Reform Commission later recommended adopting the proposals made by the
ALRC.[26] The Evidence Act 1995 was
enacted as a result of those reform proposals.
2.3 The voir dire
procedure in the Australian federal courts (and the courts at state level in New
South Wales) is now governed by the Evidence Act
1995.[27] Section 189 of the 1995
Act provides:
“(1) If the determination of a question whether:
(a) evidence should be admitted (whether in the exercise of a discretion or not), or
(b) evidence can be used against a person, or
(c) a witness is competent or compellable,
depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question.
(2) If there is a jury, a preliminary question whether:
(a) particular evidence is evidence of an admission, or evidence to which section 138 (Discretion to exclude improperly or illegally obtained evidence) applies, or
(b) evidence of an admission, or evidence to which section 138 applies, should be admitted,
is to be heard and determined in the jury’s absence.
(3) In the hearing of a preliminary question about whether a defendant's admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission's truth or untruth is to be disregarded unless the issue is introduced by the defendant.
(4) If there is a jury, the jury is not to be present at a hearing to decide any other preliminary question unless the court so orders.
(5) Without limiting the matters that the court may take into account in deciding whether to make such an order, it is to take into account:
(a) whether the evidence to be adduced in the course of that hearing is likely to be prejudicial to the defendant, and
(b) whether the evidence concerned will be adduced in the course of the hearing to decide the preliminary question, and
(c) whether the evidence to be adduced in the course of that hearing would be admitted if adduced at another stage of the hearing (other than in another hearing to decide a preliminary question or, in a criminal proceeding, a hearing in relation to sentencing).
(6) Section 128 (8) does not apply to a hearing to decide a preliminary question.
(7) In the application of Chapter 3 to a hearing to determine a preliminary question, the facts in issue are taken to include the fact to which the hearing relates.
(8) If a jury in a proceeding was not present at a hearing to determine a preliminary question, evidence is not to be adduced in the proceeding of evidence given by a witness at the hearing unless:
(a) it is inconsistent with other evidence given by the witness in the proceeding, or
(b) the witness has died.”
2.4 The
position is that the determination of questions of fact upon which the
admissibility of evidence depends should be made by the trial judge on a voir
dire, even where the fact is also a fact in issue (subsections (1) and (2)).
The jury should generally be excluded from a voir dire considering the
admissibility of admissions, although this should be subject to the discretion
of the trial judge (subsections (2) and (4)). However, if the court orders that
the jury is to be present during the voir dire, evidence adduced in the
voir dire should be able to be used in the trial, subject to the
exclusionary rules, without the need to repeat it (subsection (5)(c)). It
should be noted, however, that Section 189 of the Evidence Act 1995 did not
abrogate from the common law principles as to the circumstances in which it is
appropriate to conduct a voir dire
hearing.[28]
2.5 In
Australia, voir dire proceedings in relation to confession statements
have been rare. This might be due to the lower standard of proof required of
the prosecution in the determination of whether the confession statement was
made voluntarily. In Wendo v R the High Court of Australia held
that:
“in determining whether a confession statement was made voluntarily, the standard of proof to be applied by the trial judge is not that of proof beyond reasonable doubt. It is a mistake to transfer the general propositions as to proof beyond reasonable doubt laid down in Woolmington v DPP [1935] A.C. 462 from their application to the issues before the jury to incidental matters of fact which the judge must decide.”[29]
2.6 Thus,
in Australia, the standard of proof required at the voir dire in criminal
cases is the civil standard of a balance of probabilities, and not the higher
criminal standard of proof beyond reasonable doubt currently adopted by other
common law jurisdictions such as Hong Kong and England. As the Evidence Act
1995 is a recent enactment, it remains to be seen whether the Act would affect
the frequency with which voir dire proceedings are held in respect of the
issue of voluntariness.
2.7 According to the Office of the New South
Wales Director of Public Prosecutions, there is some similarity between the
“alternative procedure” and the voir dire procedure in judge
alone trials. Under section 32 of the Criminal Procedure Act, trials in the
District and Supreme Courts can be heard by a judge alone. A judge sitting
alone is obliged to conduct a voir dire when issues as to the
admissibility of confessions are raised by the defence. However, once the judge
has heard the evidence and the objections during the voir dire hearing,
it is not the practice to require the parties to call the same evidence
again.
2.8 The position of Canada in relation to confession statements is
succinctly summarised in the New Zealand Evidence Law Reform Committee’s
Report on
Confessions:[30]
“In recent years, the Supreme Court of Canada has limited the voluntariness rule by the doctrine of reliability or trustworthiness. In R v Wray [1971] SCR 272 the majority held that a part of an otherwise inadmissible confession, which is confirmed by real evidence discovered as a result of the same confession, is admissible; the reason being that the unreliability of that part has been removed. Also, the majority in Alward and Mooney v The Queen [1978] 1 SCR 559 approved the voluntariness rule in the following terms:
‘The true test, therefore, is did the evidence adduced by the Crown establish that nothing said or done by any person in authority, could have induced the accused to make a statement which was or might be untrue because thereof’
It appears that the Canadian Supreme Court has now entirely replaced the voluntariness rule with the reliability rationale alone.”
2.9 In England, the admissibility of confession statements is now
largely governed by the Police and Criminal Evidence Act 1984
(“PACE”). Section 76 of PACE provides that:
“(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained -
(a) by oppression of the person who made it; or
(b) in consequences of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,
the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.
(3) In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above.”
2.10 As
in Hong Kong, whenever a confession is challenged by the defence, the
prosecution is obliged to prove beyond reasonable doubt that the confession was
not obtained in the manner referred to in subsection (2) above. In addition,
the court’s power under subsection (3) to require proof on its own motion
of the voluntary nature of any confession statement provides protection to the
unrepresented defendant, who may be unaware that he has the right to raise
objection to the admissibility of the confession.
2.11 It was said in
R v Anderson[31] that there
were seldom any circumstances in which a jury could be asked to leave the court
in order that statements might be made in their absence, save where this was
done at the request or with the consent of the defence. Lord Bridge set out in
Ajodha v The State the appropriate procedure for dealing with challenges
to the admissibility of a confession
statement:[32]
“In the normal situation which arises in the vast majority of trials where the admissibility of a confession statement is to be raised, prosecuting counsel will not mention the statement in his opening to the jury, and at the appropriate time the judge will conduct a trial on the voir dire to decide on the admissibility of the statement; this will normally be in the absence of the jury, but only at the request or with the consent of the defence.”
As
in Hong Kong, the question of whether or not the hearing on admissibility will
be held in the presence of the jury is a matter for the defence. As Lord Bridge
pointed out in Ajodha, the defence may:
“... for tactical reasons prefer that the evidence bearing on that issue be heard before the jury, with a single cross-examination of the witnesses on both sides, even though this means that the jury hear the impugned statement whether admissible or not.”[33]
2.12 Our
understanding is that counsel for the defence in England are far less ready to
call for the issue of admissibility to be dealt with in the absence of the jury
than is the case in Hong Kong. The DPP of Hong Kong has pointed
out[34] that in England, voir
dire proceedings in relation to confession statements are rare. Where the
defence challenge the admissibility of a confession statement, they do not
generally opt for a voir dire, but instead ventilate the question of
admissibility together with the general issue before the jury. The view seems
to be that the challenge should be made but once, and before the jury. The
judge tells the jury that if they conclude that the confession was obtained by
improper means, they should attach no weight to it. Private counsel seem averse
to litigating the issue twice, once before the judge alone, and then again
before the jury. This may be because they do not want to give prosecution
witnesses the opportunity of a dress rehearsal before they give their evidence
in front of the jury.
2.13 The voir dire procedure is used both
in the Crown Court, where the judge sits with a jury, and in the
magistrates’ court, where there is no jury and the court is presided over
by a single professional magistrate or three lay magistrates. Bruce and McCoy
suggest that the “alternative procedure does operate in proceedings in
the magistrates’
courts”.[35] In the
magistrates’ court, the prosecution will adduce the evidence in the normal
way, but the defence is then given the opportunity to call evidence on the
admissibility issue alone. The prosecution may not go into the contents of the
confession if they are not relevant to the question of admissibility. The
prosecution case can then continue and the magistrates must give a decision
regarding admissibility before or at the end of the prosecution case (R v
Liverpool Juvenile Court, exp
R[36]). If the magistrates
decide to admit the confession, they do not have to hear the evidence of the
circumstances of the confession all over again, unless, of course, it is
relevant to the issues of fact.
2.14 Section 78 of PACE provides the
court with a discretion to exclude evidence which would have such an adverse
effect on the fairness of the proceedings that the court ought not to admit
it.
2.15 The law relating to confessions in Malaysia is contained in the
Evidence Act 1950.[37] Section
17(2) of the Act defines a confession as “an admission made at any time
by a person accused of an offence, stating or suggesting the inference that he
committed that offence”. The Act separates admissions from
confessions. There is however a connection between the two. An admission is
the genus whereas a confession is a specie of an admission applicable to
criminal cases.[38] The court will
only treat a statement as a confession if the accused admits to the elements of
the offence, i.e. the intention to commit the crime, and the commission of the
unlawful
act.[39]
2.16 Section 24
of the Evidence Act 1950 provides that:
“A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused, proceeding from a person in authority and sufficient in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him.”
2.17 Inducement,
threat or promise in section 24 is not restricted to physical harassment. It may
take the form of statements by the
interrogator.[40] In Lim Kim
Tjok v Public Prosecutor,[41] it
was held that the words “you better tell the truth” vitiated
the confession. The words “any advantage or avoid any evil of a
temporal nature” in section 24 means that the accused’s
confession will remain voluntary if the inducement, threat or promise is
spiritual or religious in
context.[42]
2.18 The
inducement, threat or promise need not be express but may be implied from the
circumstances of the case. In Public Prosecutor v Law Say Seck &
Anor,[43] the two accused
had no desire of their own to be produced before the magistrate to make a
confession. They had remained in police custody even after the second accused
had broken down and the first accused had agreed to confess. They still
remained at the Special Branch lock up. The second accused was brought from the
Special Branch to the magistrate and both the accused knew they were going back
to the police.[44] Sharma J
therefore held that the circumstances of this case pointed to a doubt as to the
voluntary nature of the confession and the statements were therefore not
admissible. There was reason to apprehend that the influence of the police was
still continuing on the mind of the accused when they confessed before the
magistrate. The confession could have very little
weight.[45]
2.19 Section
25(1) provides that subject to any express provision in written law, no
confession made to a police officer below the rank of Inspector shall be proved
against a person accused of an offence. Written law includes the common law and
any custom or usage having the force of laws in the Federation of Malaysia or
any part of it.[46] Under section
26(1), subject to any express provision in written law, no confession made by a
person in the custody of a police officer, unless made in the immediate presence
of a President of a Sessions Court or Magistrate, shall be proved against that
person. Custody in this sense does not necessarily mean a formal arrest. It is
sufficient that the accused person cannot go as he
wishes.[47]
2.20 The magistrate is obliged to satisfy himself that the statement
the accused is about to make is not influenced by any form of inducement, threat
or promise and there must be a real endeavour by the magistrate to find out the
object of the confession: Public Prosecutor v Law Say Seck &
Anor.[48] In Law Say
Seck, the question raised was the admissibility of statements made by the
accused under section 126(1) of the Straits Settlements Criminal Procedure Code
to a magistrate. Section 126(1) provided that a police magistrate might record
any confession made to him before trial. Section 125(1) of the Code was almost
the same as section 24 of the Evidence Act. The effect of that section was that
a confession obtained by the use of any inducement, threat or promise would be
inadmissible.
2.21 Sharma J said the person confessing should be left
to narrate his story as a whole without any interference. The person confessing
should also be allowed to give full details of the crime. The
magistrate’s duty is only to record what the accused says or wishes to
say. The magistrate does not play the role of an investigating officer. His
questions must be in pursuance of a real endeavour to find out the object of the
confession.[49]
2.22 In New Zealand, voluntariness remains one of the key tests of
admissibility of confession statements in criminal trials. The standard of
proof to be applied by the trial judge is the criminal standard of proof beyond
reasonable doubt.
2.23 This test is subject to section 20 of the
Evidence Act 1908 which provides:
“A confession tendered in evidence in any criminal proceedings shall not be rejected on the ground that a promise or threat or any inducement (not being the exercise of violence or force or other form of compulsion) has been held out to or exercised upon the person confessing, if the judge or other presiding officer is satisfied that the means by which the confession was obtained were not in fact likely to cause an untrue admission of guilt to be made.”
2.24 Thus,
in New Zealand, “to be admissible the accused’s confession must
be proved by the prosecution, beyond reasonable doubt, to have been voluntarily
made or, if it is not voluntary, to be saved by section 20 of the Evidence Act
1908.”[50]
2.25 Lastly,
the trial judge has a discretion to exclude a confession statement which is
found to have been voluntarily made but which was obtained by means which are
considered unfair to the defendant.
2.26 In New Zealand, a voir
dire in relation to confession statement takes place when an objection to
admissibility is raised by the defence or when the trial judge calls for a
voir dire on his own initiative; and the proceedings will be heard in the
absence of the jury.
2.27 In Scotland, the test of admissibility of any self-incriminating
statement by the accused is one of “fairness”: “[the]
simple and intelligible test which has worked well in practice is whether what
has taken place has been fair or
not.”[51] What is fair is
a question of the particular circumstances of each case, and the rights of the
accused must be balanced against the public interest in the administration of
justice. Indeed, there has been “a steady move towards liberalisation
so that justice must, of course, be done to the criminal, but equally justice
must be done to the interest of the public and law and
order.”[52]
2.28 Where
unfairness is alleged at a jury trial in the taking of a statement from the
accused, the issue may be examined in a trial within a trial from which the jury
are excluded. The trial within a trial was introduced in Scotland only in the
1950’s, by the case of Chalmers v HM
Advocate.[53] Since its
introduction it has been the subject of considerable criticism, and the
circumstances in which it is used have been steadily eroded. Where the trial
within a trial procedure is adopted, it follows essentially the same course as
in Hong Kong.
2.29 There are significant differences, however, in the
basis for the judge’s ruling on admissibility. Crucial to this is the
fact that the question of what amounts to unfairness is apparently not a
question of law, but one of fact and degree, and as such is properly the
preserve of the jury. Renton and Brown observe:
“Whether or not a trial judge can in practice reject statements as inadmissible, and withhold them from the jury, on the basis of his own assessment of the evidence of the circumstances in which they were made, he is not obliged, and indeed it may be in law that he is not entitled, to withhold them unless two requirements are satisfied. The first is that there is no conflict of evidence as to the circumstances in which the statements were obtained, and the second is that it is abundantly clear on undisputed evidence that they were obtained unfairly. While it remains the law that in the end of the day the Crown have to satisfy the jury that the statements were obtained fairly, the defence may be able to have them withheld from the jury only by showing that on any view of the evidence they were indisputably obtained unfairly.”[54]
2.30 The
position described by Renton and Brown reflects two decisions in particular. In
Murphy v HM Advocate, Lord Wheatley said:
“In considering whether the presiding judge erred in his decision at the trial within the trial it must be borne in mind (1) that if an issue turns on credibility it is for the jury to decide the issue and not the judge; (2) that if two possible interpretations can properly be put on the situation, one of which falls into the category of fairness and the other into the category of unfairness, the judge should leave the determination of that issue to the jury.”[55]
2.31 In
Balloch v HM Advocate, Lord Wheatley said:
“A judge who has heard the evidence regarding the manner in which a challenged statement was made will normally be justified in withholding the evidence from the jury only if he is satisfied on the undisputed relevant evidence that no reasonable jury could hold that the statement had been voluntarily made and had not been extracted by unfair or improper means.”[56]
2.32 The
consequence of this development of the law is that the use of the trial within a
trial has dwindled almost to the point of extinction. Its demise has been
assisted by an additional procedural factor: the introduction of a new form of
Judicial Examination by the Criminal Justice (Scotland) Act 1980. In
proceedings on indictment, the accused must be brought before the court on the
first court day after arrest. At this preliminary appearance, or at a
subsequent appearance before the accused is “Fully Committed” for
trial (which is generally eight days after his first appearance) the prosecutor
may question the accused, inter alia, on any alleged extra-judicial confession
made by him to or in the hearing of a police officer which is relevant to the
charge, whether or not it is a full admission. A copy of the written record of
any such admission must previously have been served on the accused and provided
to the judge. Strict limits apply to the questions which the prosecutor may
ask, and the accused may decline to answer any question put to him. At the
subsequent trial:
“his having so declined may be commented upon by the prosecutor, the judge presiding at the trial, or any co-accused, only where and in so far as the accused (or any witness called on his behalf) in evidence avers something which could have been stated appropriately in answer to that question.”[57]
The
practical effect of Judicial Examination is to give the accused an early
opportunity to allege unfairness in the taking of any confession statement,
while at the same time reducing the likelihood of objections being raised for
the first time at trial.
2.33 One further point worth noting in relation
to the Scottish approach to the admissibility of confessions is that once the
accused has been charged, he may not be questioned further by the police
regarding the offence with which he has been charged. There is not, as in Hong
Kong, an exception to allow, for instance, questioning where necessary to
prevent or minimise harm or loss to some other person or the public: the
prohibition in Scotland is absolute, and extends to answers given to questions
about information subsequently obtained by the police.
2.34 There is no statutory procedure for the conduct of a voir
dire in Singapore. Singapore adopts the common law practice of a voir
dire where the prosecution will adduce evidence on the issue of
admissibility only, followed by the defence’s evidence on this point. At
the end of the voir dire, the prosecution may then continue to adduce
evidence on the general issue.
2.35 A voir dire is necessary
whenever the admissibility of a confession is challenged, provided that the
dispute over the admissibility is not confined to a pure point of law, but is
one which requires the calling of evidence of the accused person and other
witnesses in support of or against the admissibility of the confession.
Examples of situations where the admissibility of a confession is challenged
include the following: when a statement is challenged on grounds that it was
made under threat, inducement, promise (found in the proviso to Section 122(5)
of the Criminal Procedure Code (Chapter 68)) or oppression; or when a statement
is made to a police officer below the rank of Sergeant.
2.36 Trial by
jury was abolished in Singapore in 1969. The trial judge will decide on the
general issue and on the issue of admissibility, if it arises. However,
evidence adduced in the voir dire will not be admissible as evidence in
the main trial, unless the same is led in the main trial.
2.37 The
alternative procedure is not used in Singapore. According to the
Attorney-General’s Chambers of Singapore, there has not been any recent
reform in the voir dire procedure, nor any proposed reform of the
subject.
2.38 Under the Criminal Procedure Act 1977 strict admissibility
requirements are imposed in respect of confessions. The purpose of this is to
prevent a false confession being used as evidence, to protect an accused against
improper investigatory methods, and to prevent the violation of the proper
administration of justice in accordance with civilised legal
norms.
2.39 A confession is admissible if it is proved to have been made
freely and voluntarily by the accused who was in his sound and sober senses and
without having been unduly influenced (section 217(1) of the Criminal Procedure
Act). A confession made to a peace officer (a police official without the rank
of Officer) is inadmissible unless it is confirmed and reduced to writing in the
presence of a magistrate or a justice of the peace (police officer) (proviso to
section 217(1)(a)).
2.40 A second proviso to section 217(1)(b) provides
that a confession made in the first instance to a magistrate and reduced to
writing by him, or in the second instance confirmed and reduced to writing in
his presence, is admissible as evidential material upon the mere production of
such document, provided it appears from the document that the name of the person
making the statement corresponds to that of the accused. Where an interpreter
is used, the document must also bear a certificate by the interpreter to the
effect that he so acted.
2.41 It is furthermore presumed, unless the
contrary is proved, that the confession was made voluntarily, while the accused
was in his sound and sober senses and without any undue influence, provided it
appears from the document that the confession has been so made (proviso to
section 217(1)(b)).
2.42 The Criminal Procedure Act further
distinguishes between the admissibility requirements for admissions and
confessions.[59] Section 219A of
the Act provides that an extra-judicial admission by someone with regard to the
commission of an offence, if it does not constitute a confession to the offence,
is admissible evidence provided it is proved that the admission was made
voluntarily. The section also provides that where the admission is made to a
magistrate or is confirmed and reduced to writing in his presence, it is by its
mere production admissible under the same circumstances and conditions that
apply to confessions.
[23] Australian Law Reform Commission, Evidence Interim Report, (Report No 26), 1985.
[24] Evidence Interim Report, op cit, paragraph 245.
[25] Australian Law Reform Commission, Evidence Report, (Report No 38), 1987.
[26] New South Wales Law Reform Commission, Evidence Report, (Topic 56), June 1988.
[27] The Evidence Act 1995 is the same both at the federal level and the state level in New South Wales. See: Commonwealth Consolidated Acts Home Page:
http://www.austlii.edu.au/do2/disp.pl/...580/s189.html?query=titlte(voir%20dire) and
NSW Consolidated Acts Home Page:
http://www.austlii.edu.au/do2/disp.pl/...t/ea199580/s189.
html?query=voir%20dire
[28] R
v Salindera,(Unrep) Court of Criminal Appeal 25 October
1996.
[29] 37 A.L.J.R. 77, at
77.
[30] Evidence Law Reform Committee, New Zealand, Report on Confessions, (February 1987), at page 15.
[31] (1929) 21 Cr. App. R. 178 at 183.
[32] [1982] AC 204, at 223.
[33] Idem.
[34] The DPP’s views were set out in his note dated 28 February 1998 to the Secretary of Law Reform Commission.
[35] See Criminal Evidence in Hong Kong (Issue 3, 1996), at V [905]-[950] of Division V.
[36] [1987] 2 All ER 668.
[37] Act 56 of 1950.
[38] The Annotated Statutes of Malaysia: Evidence Act 1950 (1996 Issue), notes to [17].
[39] See Anadagoda v R [1962] MLJ 289; Lemanit v Public Prosecutor [1965] 2 MLJ 26; Zamzuri bin Nazari v Public Prosecutor [1995] 4 CLJ 540.
[40] The Annotated Statutes of Malaysia, op cit, notes to [24].
[41] [1978] 2 MLJ 94.
[42] The Annotated Statutes of Malaysia, op cit, notes to [24].
[43] [1971] MLJ 199 at 201.
[44] [1971] MLJ 199.
[45] [1971] 1 MLJ 199 at 201.
[46] The Annotated Statutes of Malaysia, op cit, notes to [25].
[47] See Eng Sin v Public Prosecutor [1974] 2 MLJ168.
[48] [1971] 1 MLJ 199.
[49] [1971] 1 MLJ 199 at 200I.
[50] Evidence Law Reform Committee, New Zealand, Report on Confessions, (February 1987), at page 7.
[51] Walker and Walker, The Law of Evidence in Scotland (1964), at paragraph 46.
[52] Hartley v HM Advocate 1979 SLT 26, at 28.
[53] [1954] JC 66.
[54] Criminal Procedure According to the Law of Scotland, (6th ed.), at 453-454.
[55] 1975 SLT (Notes) 17, at 18.
[56] 1977 JC 23, at 28.
[57] Section 36(8) of the Criminal Procedure (Scotland) Act 1995.
[58] See generally paragraphs 9.36 to 9.40 of South African Law Commission, Interim report on the simplification of criminal procedure, Project 73, (August 1995) on which this general account of the South African legal position is based.
[59] ‘Admission’ and ‘confession’ are often treated as having a slightly different meaning. ‘Confession’ is often treated as a full and detailed admission: see Andrew Bruce and Gerard McCoy, Criminal Evidence in Hong Kong, 2nd Ed, Butterworths (1991), at paragraph 5-1.