|
Hong Kong Law Reform Commission |
3.1 In its opening pages, the Report identified particular areas of
concern where the Commission believed the current laws and procedures relating
to confession statements and their admissibility in criminal proceedings were
deficient. One of the most important of these was that:
“A disproportionate amount of Court time and both public and private money is expended on determining the admissibility of confession statements in criminal trials.”[60]
3.2 This
related directly to the use of the voir dire in jury trials as a means of
determining the admissibility of confession statements in criminal cases. The
Commission included in the Report statistical data which clearly showed not only
that there was extensive use of the voir dire in Hong Kong, but also that
the extent of that use was far higher than in England and Wales:
“The figures ... show that in High Court trials before a judge and a jury in which the prosecution seeks to rely on a confession as part of its case, the voir dire procedure is used in 90% of them. In the District Court the equivalent figure is 88%. ... In the High Court the voir dire procedure succeeds in 18.5% of the cases in which it is initiated. In the District Court the equivalent figure is 43%. An approximate comparison can be made with recent, though limited, figures in England. There, in Crown Court trials, which always take place before a judge and a jury, the voir dire is used in only 10.5% of cases in which the prosecution wants to put in evidence the defendant’s confession. Of those cases the success rate is 14% .... The difference between the Hong Kong and English figures is startling, even allowing for the fact that an accurate comparison cannot be made from the figures available. In England, of those cases where the prosecution seeks to rely on a confession, the defence succeeds in having the confession excluded in 1.5% of them. In Hong Kong the equivalent figure is at least 25% and possibly as high as 34.0%.”[61]
3.3 Since
the Report was published, a significant development has been the increased use
of video to record statements taken from accused persons. Figures provided by
the Police and ICAC (shown at Tables 1 to 3 in the Introduction to this paper)
indicate that the use of video recording has led to a substantial reduction in
the number of challenges to confession statements. The ICAC figures reveal that
for the years 1995 to 1997, there was a voir dire held in respect of between
16.6% and 19.3% of cases proceeding to trial. In all these cases the interview
had been video recorded. For the Police, the figures available for 1997 show
there were challenges to 15% of the video recorded interviews put forward in
High Court trials. Where interviews are not video recorded, Police figures for
1997 indicate that 33% of interviews were challenged in the High
Court.
3.4 Despite the reduction in voir dires as a result of wider use
of video recording, the limited figures available in the earlier Report
(referred to in paragraph 3.2 above) indicate that even where the interview is
video recorded, the proportion of voir dires in Hong Kong remains some 50%
higher than that in England and Wales (Of course, not all interviews are so
recorded, and the limited resources available to the Police mean that it is
unlikely that comprehensive video recording will be implemented for some time to
come.) Even where the figures for the use of the voir dire to be comparable to
those in England, there remain valid reasons for considering whether the use of
the voir dire is either necessary or desirable. Other jurisdictions such as
Scotland have long rejected its use with no suggestion that that has led to any
unfairness to the accused. In the following paragraphs we outline the principal
arguments for and against the continued use of the voir dire
3.5 The principal argument in favour of finding alternatives to the
voir dire is the saving of court time and costs. Not infrequently the same
evidence which is relevant to the issue of admissibility is also relevant to
weight or credibility, and time would be saved by taking the evidence in the
presence of the jury. Under the alternative procedure, for instance, the same
issue need not be tried twice, once before the judge sitting alone, and later in
the jury’s presence. The duplication of evidence which is involved in a
voir dire also provides the witnesses with an opportunity to change their
evidence in the main trial after they have seen how they were cross-examined in
the voir dire, with no opportunity for the jury to test the two versions, since
they will hear only the second.
3.6 Where evidence is excluded after a voir dire, the jury are left
not knowing just what it was, and it may not have been as bad as they imagine.
It would be better to let the jury hear all the evidence, and allow the judge to
direct the jury to disregard any evidence which is ruled inadmissible, rather
than to run the risk that the jury are influenced by speculative doubts as to
the nature of the evidence which was denied them.
3.7 The Director of Public Prosecutions (the
DPP)[62] points out that if a
preliminary challenge to a confession is unsuccessful in Hong Kong, it can be
repeated before a jury. The jury are not aware, when it is challenged before
them, that the judge has already ruled it to be admissible. They are directed
in terms that if they conclude that allegations of fabrication of evidence or
impropriety are true, or might be true, they should place no weight upon the
confession. They thus see the confession, and are treated as being capable of
disregarding it if they conclude it is, or might be, the product of malpractice.
To that extent, therefore, it is clear that as matters currently stand juries do
see confessions which it may be incumbent upon them in the course of their
deliberations to set at naught.
3.8 The DPP has also pointed out that
the jury are invariably directed in terms such as:
“The question is whether you are sure that the accused made a true confession. If you are not, then ignore the alleged confession. If you are sure that the accused made it, then you are concerned with the truth of the confession. You should look at all the circumstances in which it was made. Any pressure on an accused to make a confession lessens the reliability of any confession he makes.”
3.9 The
DPP takes the view that it is but a small step for juries to hear evidence
relating to admissibility as well as weight: if they are treated as being
capable of disregarding an improperly obtained confession when they retire at
the conclusion of the trial, they ought equally to be capable of putting out of
their minds a confession statement which comes before them on a hearing as to
admissibility, but is then ruled by the judge to be inadmissible in
law.
3.10 The jury, not the judge, decide what credibility and weight to
attach to the evidence led before them at a criminal trial. The voir dire
procedure, however, excludes the jury from assessing the credibility of the
evidence led in relation to the voluntariness of the confession statement. It
runs counter to the general principle of criminal trial procedure to leave the
assessment of the credibility of the witnesses in relation to this one issue a
matter for the judge, rather than the jury.
3.11 The ALRC Interim Report listed a number of considerations which
suggest that the jury need not or should not always be sent out during the
hearing of admissibility of
confessions.[63] One of these was
that it might have an adverse effect on the jury’s attitude to the court
and the parties if it is repeatedly excluded from what are apparently important
decisions.
3.12 In answer to the shortcomings of the present procedure set out
in the previous paragraphs, there are arguments which favour the continuation of
the existing reliance on the voir dire.
3.13 The main argument in favour of the existing procedure in jury
trials is that it avoids the risk that the jury may be prejudiced by hearing
evidence about a confession which is subsequently ruled inadmissible by the
trial judge. While the professional judge is able to remove consideration of
such inadmissible evidence from his mind when reaching a verdict, members of the
jury may find it harder to do so and inadmissible evidence which is prejudicial
to the accused may colour their judgment. It could therefore be argued that the
trial within a trial is justified as the lesser of two evils, and that as it
prevents the jury hearing prejudicial and inadmissible evidence it is the
preferable course.
3.14 The DPP has pointed out that:
“there may be a situation where an accused wishes to give evidence on the admissibility issue but elects to remain silent on the case proper. The jury might form an adverse view of the accused in such circumstances. That, in turn, may make the accused reluctant to testify on the limited issue for fear of alienating the jury.”
3.15 In
R v Brophy, Lord Fraser of Tullybelton said:
“It is of the first importance for the administration of justice that an accused person should feel completely free to give evidence at the voir dire of any improper methods by which a confession or admission has been extracted from him, for he can almost never make an effective challenge of its admissibility without giving evidence himself. He is thus virtually compelled to give evidence at the voir dire, and if his evidence were admissible at the substantive trial, the result might be a significant impairment of his so-called ‘right to silence’ at the trial.”[64]
3.16 If the principal objective is to save court time, the
videotaping of confessions may provide a less controversial option. The
practice of videotaping of confessions by the Police and the ICAC has (as was
explained in the introduction to this paper) reduced significantly the number of
challenges to the admissibility of confessions. While the heavy resources
needed mean that it would be impractical to videotape all Police interviews of
suspects, it is probable that this will eventually occur in relation to all
major cases, meaning those which proceed to trial by jury.
3.17 We would
observe at this point that even if all interviews were videotaped, it is clear
from the data provided by the Police and ICAC that there would still be
challenges to admissibility which would (under current practice) necessitate a
voir dire. In relation to the ICAC figures for 1997 quoted in the
introduction to this paper, for instance, 18.2% of cases going to trial involved
a voir dire. The grounds for challenge ranged from “oppressive
and leading questions” to “defendant was suffering from skin
disease and was refused medication”. In addition, even where the
videotaped interview is scrupulously conducted, there remains scope for
challenge by the accused of conduct before the formal interview began which
would negate the voluntary nature of the taped interview.
3.18 There is
one further point which we would mention in relation to the videotaping of
interviews, and it is the concern expressed to us by the ICAC that the
insistence of defence counsel that full transcripts of the interview be provided
in every case represents (to quote the ICAC) a “massive drain on
resources”. We are told by the ICAC that the preparation of a
transcript and translation of a two hour interview can take as long as ten
working days to complete. In the opinion of the ICAC, the problem is not
insurmountable but requires the co-operation of the legal profession:
“Once a video interview has been conducted, a copy of the tape is supplied to the interviewee or his legal representative. If and when a decision is taken to prosecute the interviewee, investigators prepare a summary of the video interview, only including verbatim dialogue in respect of parts of the interview they consider to be incriminating, contentious or otherwise particularly material. After consideration by Government Counsel, a copy of the summary is served on the defence who are invited to either agree it, or make proposals for revision to include additional verbatim dialogue which they consider to be of particular relevance. The idea is that, through negotiation, it should be possible for both prosecution and defence to arrive at a summary of the interview which is not so time-consuming to prepare as a transcript, yet meets both their needs. The summary would then be adduced as evidence of the interview. In practice, though, barristers and solicitors representing defendants have, without exception, steadfastly refused to subscribe to this process, preferring instead to demand a transcript of the entire interview in every case.”[65]
3.19 The
ICAC argue that there should be an administrative or legislative requirement for
defence lawyers to subscribe conscientiously to the objective of reaching
consensus on the summary of interview. At first sight, we are sympathetic to
the ICAC’s complaint, and would welcome the views of the public and the
legal profession.
3.20 Reverting to consideration of the question of
admissibility of confession statements, we believe that, notwithstanding the
arguments for the status quo set out earlier in this chapter, a case for reform
of the procedure in this area has been made out, not least because of the
significantly higher number of voir dire hearings held in Hong Kong than
overseas.
3.21 It is against this background that the Commission considers a
re-examination of the issue of admissibility of confession statements in
criminal trials is called for; albeit confining its focus on the narrower aspect
of procedural reforms, rather than revisiting the broader issues of substantive
law and practices. The purpose of this paper is to set out a number of options
for reform for public consultation. It should be stressed that in doing so the
Commission has not concluded in favour of one more than another, or set its face
against options not explored in this paper. The community’s views are
sought on the way forward.
3.22 Before turning to consider the options
for reform, it should be pointed out that this paper does not attempt to
identify the reasons why, as we have seen earlier, both the proportion of
challenges to confession statements and the numbers of contested cases in which
resort is had to the voir dire procedure are significantly higher here
than in England and Wales. To attempt such an analysis would be largely
speculative. Nevertheless, one approach to the issue which would minimise the
risk of improper conduct by the investigating authorities would be to adopt a
more restrictive approach to the type of statements admitted. It might be that
only statements recorded in a particular way, or by a particular person, or at a
particular stage of the proceedings could be put forward in court. So, for
instance, in Malaysia no confession is admissible if made to a police officer
below the rank of Inspector, while in Scotland there is an absolute prohibition
on questioning after charge. The use of videotaping reduces the likelihood of
improper conduct; a regime which admitted only statements recorded in this way
would undoubtedly reduce the use of the voir dire. While the imposition
of restrictions on admissibility such as these would be likely to result in
fewer challenges to admissibility, there would be significant resource
implications in any such measures and we therefore have not included these in
our range of options for reform.
3.23 Instead, we have concentrated on
changes to the way in which the question of admissibility is dealt with at
trial. There are, we believe, three main options for consideration, as
follows:
(A) granting the court a discretion to direct that the question of admissibility be dealt with in the presence of the jury;
(B) making the determination of the issue of admissibility of confession statements a matter for the jury in all cases; and
(C) granting the court a discretion to direct that the question of admissibility be dealt with in the presence of the jury, coupled with a lowering of the standard of proof for determining voluntariness to that of civil proceedings.
3.24 We
would make one further observation before examining each of these options in
turn. Concern was raised during discussions within the Commission that any
reforms to the procedure for determining admissibility at trial which did not
also ensure that there were deterrents against the improper questioning of
suspects would be defective. It could be argued that if the law enforcement
officer knew when questioning a suspect that there would be no voir dire
he might be more likely to adopt improper methods. In answer, it must be borne
in mind that any proposals for reform of the law relating to the voir
dire are directed at the very small proportion of criminal cases which are
heard before a jury. For the vast majority of cases currently coming before the
courts, there is no likelihood of a voir dire to temper the conduct of
investigating officers. The absence of a voir dire does not mean,
however, that the accused cannot fully ventilate in court any allegation he may
have of improper conduct on the part of the law enforcement
agencies.
3.25 In a letter to the Secretary of the Law Reform Commission dated
12 January 1998, Mr Justice Litton raised his concern at the considerable amount
of court time which has to be spent in dealing with objections to the
admissibility of confession statements. Mr Justice Litton holds the view that
it is unsatisfactory to have the question of admissibility of a confession to be
considered separately from its evidential weight and effect, particularly so in
jury trials. Mr. Justice Litton points out that much time is wasted by the
judge sitting alone hearing the witnesses in a voir dire to determine
admissibility, only to have the witnesses called all over again before the jury
to consider the question of evidential weight and effect once the statement is
admitted. This is avoided in the magistrates courts and the District Court by
the magistrates or the judge adopting the “alternative procedure”
which enables them to disregard the statement as proof of guilt should they at
the end of the day determine that voluntariness has not been established.
3.26 Mr Justice Litton argues that there is no reason why a similar
procedure should not be adopted in jury trials. Under such a proposal, at the
end of the prosecution case, the defendant can, if he so chooses, elect to
testify solely on the issue of admissibility of an alleged confession, or he can
elect to testify generally, or not at all. Mr Justice Litton further explains
that should the judge, at any stage of the trial, rule that the statement is
inadmissible, he would simply direct the jury to disregard it in their
deliberations, and ensure that any written statements previously adduced in
evidence by the prosecution are withdrawn. It is envisaged by Mr Justice Litton
that this proposal for change would inevitably lead to the argument that the
jury, having heard the relevant evidence central to the alleged confession,
would be prejudiced against the defendant even if the statement is later ruled
inadmissible by the judge, as jurors (unlike professional judges), are incapable
of excluding that evidence from their minds. In response to this possible
argument, Mr Justice Litton observes that there are many other instances where,
in the course of a trial, inadmissible statements do go before the jury and the
jury are subsequently instructed by the judge to disregard those
matters.
3.27 Mr Justice Litton recommends that the trial judge
should be given a discretion in the interests of justice to order the adoption
of the alternative procedure in a jury trial. Such a discretion would give a
free hand to the trial judge, who would not be bound to adopt the alternative
procedure. If, for example, the prosecution case is weak without the disputed
statements, and the evidence bearing on admissibility falls within a narrow
compass, the judge might well not sanction the alternative procedure. In Mr
Justice Litton’s view, a system which requires the giving of the same
evidence twice in the course of a criminal trial is neither efficient nor
economical, and thus goes against the interests of justice.
3.28 To put
into effect his proposal for change, Mr Justice Litton has suggested amendments
to the Criminal Procedure Ordinance (Cap. 221) along the following
lines:
1. When, in the course of a trial, objection is taken to the admissibility of evidence sought to be adduced by the prosecution, the judge may, if he considers it expedient in the interests of justice so to do, order that the evidence may nevertheless be put before the court, subject to these provisions:
(i) The accused may elect to testify, and call witnesses, before the close of the prosecution case, relating solely to the admissibility of such evidence.
(ii) Where the judge considers that such evidence is not properly admissible he shall, before the close of the prosecution case, rule accordingly.
2. Where the judge has ruled in accordance with paragraph (ii) above, he shall forthwith direct the jury to disregard such evidence and shall direct that any written material relating thereto be withdrawn.
3.29 The
arguments for and against this proposal are essentially those set out at the
beginning of this Chapter, though it is to be assumed that providing the trial
judge with a discretion as to whether to hear the question of admissibility in
the presence of the jury would provide safeguards to ensure that the accused was
not unfairly prejudiced, a protection which would be lacking if such hearings
automatically proceeded before the jury. As matters stand, it is up to the
defence to decide whether or not a voir dire will be held, and in
practical terms that effectively means that a voir dire is held in almost
every jury case where objection is raised to the admissibility of a confession.
Mr Justice Litton’s proposal would place the decision as to whether or not
to hold a voir dire in the hands of the trial judge.
3.30 This option goes further than that proposed by Mr Justice Litton
at Option A and calls for the abolition of the voir dire in all cases by
making the question of admissibility a matter for the jury to decide. The
general arguments for and against the use of the voir dire procedure set
out earlier in this Chapter apply in respect of this option. In addition,
however, it can be argued in its favour that there seems little justification
for the view that the jury are incapable of reaching this decision, or of
putting from their minds evidence of a confession which they have themselves
ruled was not voluntarily given, when the current procedure expects them
nevertheless to be capable of assessing post voir dire the weight to be
given to a confession on which competing evidence is presented as to the manner
of its taking. The distinction is, it could be argued, unrealistic and
artificial and assumes in members of the jury a lack of sophistication which has
little validity in late 1990’s Hong Kong.
3.31 A further argument
in favour of this option is that it has the effect of minimising and possibly
removing the risk of jurors being prejudiced by evidence about a confession
which is subsequently ruled inadmissible by the trial judge. Since the decision
as to the admissibility of a confession is a matter for the jurors, they would
logically readily disregard evidence which they have themselves considered to be
inadmissible, as it is obvious that they would believe in the correctness of
their own decision. Thus there would be no question of jurors being prejudiced
by evidence relating to a confession which they have themselves ruled
inadmissible.
3.32 We note that the law in Scotland has in effect
developed along these lines, with the use of the voir dire procedure in
jury trials virtually extinct and the admissibility of a confession for all
intents and purposes a question of fact for the jury to
decide.
3.33 Option B arguably provides a more rational approach to the
way in which evidence of an alleged statement by the accused is handled. Under
current procedure, if the accused denies making a statement at all, that is a
matter of fact for the jury to decide. If, however, he concedes that a
statement was made but claims that it was forced from him, the question of
whether or not the statement was taken voluntarily is a matter of law for the
judge to decide. It is difficult to discern why the latter circumstance should
not be equally capable of decision by a properly instructed jury.
3.34 A
final argument in favour of this particular option is that safeguards provided
under the current laws and practices in Hong Kong are sufficient to obviate the
need for continued use of the voir dire procedure and to justify leaving
the question of admissibility to be determined by the jury.
3.35 The Australian experience and their relevant legislation
discussed in Chapter 2 offer a further option for reform.
3.36 In
Australia, under section 189 of the Evidence Act 1995 (New South Wales), the
determination of questions of fact upon which the admissibility of evidence
depends is in general heard and determined by the trial judge in a voir
dire, in the jury’s absence. The jury is generally excluded from the
voir dire considering the admissibility of a confession, although this is
subject to the discretion of the trial judge. If the court at the end of the
day orders that the jury is to be present during the voir dire, evidence
adduced in the voir dire may also be used in the trial, subject to the
exclusionary rules, without the need to repeat it.
3.37 In Australia,
the standard of proof required of the prosecution in proving the voluntariness
of a confession statement is the civil standard of a balance of probabilities,
and not the higher criminal standard of proof of beyond reasonable doubt
currently adopted by other common law jurisdictions such as Hong Kong and
England.
3.38 The principal difference between this option and option A
is that, while option A would provide the trial judge with a largely unfettered
discretion to direct that the question of admissibility be heard in the presence
of the jury, section 189 implies that, as a general rule, a voir dire
should be held in the absence of the jury, thus giving the judge a more
limited discretion to proceed by way of the alternative procedure. In addition,
our formulation of option A does not include a proposal to change the standard
of proof required of the prosecution to that of a balance of
probabilities.
3.39 The advantage to be gained from the implementation
of this option is that the judge would be given the authority to exercise his
discretionary power to take into account practical considerations, such as
whether the evidence, if it were to be adduced before the jury on the question
of admissibility, would be prejudicial to the defendant and whether that
evidence would be admitted if adduced at another stage of the hearing.
3.40 It is submitted that this discretionary power provided to the
judge would, in appropriate circumstances, greatly reduce the time needed for
trial. Arguably, the lack of such a discretion leaves the trial judge with no
choice but to require the witnesses to give their evidence twice on matters
central to the confession.
3.41 As was pointed out earlier, the concern of this paper is to
consider ways in which the current procedure for determining the admissibility
of confession statements at trial could be improved. Arising from Option C
above is the question of the standard of proof to be applied to issues of
admissibility. The criminal standard of proof beyond reasonable doubt currently
applies in Hong Kong, but in Australia the standard of proof required of the
prosecution for determining the admissibility of confession statements is the
lower civil standard of proof on the balance of probabilities. It is possible
that a change in the standard of proof could be included as a part of Options A
or B, and comments are invited on such an approach
3.42 It could be
argued that the existing standard of proof beyond reasonable doubt imposes an
unreasonable and onerous burden on the prosecution in that establishing the
“voluntariness” of a confession statement effectively requires the
prosecution to prove a negative: that no undue force or influence was brought to
bear on the accused. Proving a negative is notoriously difficult and should
require proof only to the lower civil standard of a balance of probabilities.
As was observed by the High Court of Australia in Wendo v R:
“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.”[66]
The
argument in favour of the lower standard of proof is further discussed by
Gillies:
“This last principle, that the burden imposed upon the prosecution is governed by the criminal standard - one seemingly easy to state - itself admits of certain exceptions. No consistent principle for the identification of these exceptions can be pointed to, except the rather broad and non-conclusive negative proposition that these exceptions relate to the proof of intermediate facts, rather than the ultimate facts, upon which criminal liability is contingent. Thus, for example, the general common law evidential principle that involuntarily made confessions and admissions are not admissible against the accused, which principle imposes proof of voluntariness upon the prosecution, stipulates that this proof is to be according to the civil standard.” [67]
3.43 It
follows that as the issue of admissibility is neither a jury question, nor does
it involve the ultimate facts, the criminal standard of proof would be too
onerous and too unreasonable to be required of the prosecution in its proving of
an incidental matter of fact or an intermediate fact upon which criminal
liability is not contingent. It is thus arguable that as the role of a judge in
a voir dire is merely to decide whether there is a prima facie
reason for admitting the statement, a lower civil standard would be appropriate,
as the judge’s decision on this special issue of admissibility does not go
to criminal liability. However, once the statement is admitted, the jury must
be satisfied that the confession statement, and the other ultimate facts upon
which conviction is contingent, have been proved beyond reasonable doubt by the
prosecution before a conviction can be secured. Thus, in Wendo v R, it
was held that:
“In criminal trials, as in civil cases, questions of fact frequently arise which must be determined by the trial judge before he decides whether to admit evidence for the consideration of the jury. Confessional statements are but one illustration of the type of evidence the tender of which may give rise to preliminary questions of fact which the judge must decide for himself. Other illustrations were given by Lord Denman C.J. in Doe d. Jenkins v Davies (1847). 10 Q.B. 314, at p.323, where His Lordship said: ‘There are conditions precedent which are required to be fulfilled before evidence is admissible for the jury. Thus an oath, or its equivalent, and competency, are conditions precedent to admitting viva voce evidence; and apprehension of immediate death to admitting evidence of dying declarations ...’ But proof of the fulfilment of these or any other conditions precedent to the admission of evidence is not required to be given beyond reasonable doubt ... If the judge decides that there is a prima facie reason for admitting the evidence, it is for the jury or, in a case such as this, the judge sitting as a jury to determine what weight is to be given to it. It is then that the standard of proof beyond reasonable doubt has to be applied and it will often happen that, in applying that standard, the tribunal of fact will properly be asked to take into account evidentiary material placed before it which has earlier been elicited on the voir dire.”[68]
3.44 The
contrary argument is that lowering the standard of proof would mean removing
from the accused the greater protection enshrined in the current condition for
the admissibility of a confession statement. If the civil standard of proof
were applied, the prosecution would find it easier to prove voluntariness, and
the accused would be more readily exposed to incriminating evidence which would
have been rendered inadmissible under the higher standard.
3.45 We do
not express a concluded view on this issue, but would appreciate comment on
whether a lowering of the standard of proof to determine voluntariness should be
included as part of any of the proposed options for reform.
3.46 In concluding this consultation paper, we invite comment
principally on the specific options for procedural reform which we have
identified in this Chapter, but we would welcome thoughts on other means of
improving the present procedure in jury trials for determining the admissibility
of confession statements in criminal cases. The Commission remains open minded
on the best way forward, and seeks input from the community as to the preferred
option.
[60] The Report, at page 1.
[61] Pages 7 and 8 of the Report.
[62] The DPP’s views were set out in his note dated 28 February 1998 to the Secretary of the Law Reform Commission.
[63] Evidence Interim Report, (Report No 26, Vol. I), Australian Law Reform Commission, 1985 paragraph 1035.
[64] [1982] AC 476, at
482.
[65] From a letter to the
Secretary of the Law Reform Commission of 5 August
1998
[66] 37 A.L.J.R. 77, at
77.
[67] Gillies, Law of
Evidence in Australia, (1st ed., 1987), at
62.
[68] 37 A.L.J.R. 77, at
81-82.