THE LAW REFORM COMMISSION OF HONG KONG

CONSULTATION PAPER ON

THE PROCEDURE GOVERNING THE ADMISSIBILITY

OF CONFESSION STATEMENTS

IN CRIMINAL PROCEEDINGS

This consultation paper can be found on the Internet at <http://www.info.gov.hk.> during the consultation period.

Mr Peter Kwok Bun SIT, Government Counsel, was principally

responsible for the writing of this consultation paper.

THE LAW REFORM COMMISSION OF HONG KONG

CONSULTATION PAPER ON

THE PROCEDURE GOVERNING THE ADMISSIBILITY

OF CONFESSION STATEMENTS

IN CRIMINAL PROCEEDINGS

CONTENTS

Chapter

Introduction

Background

Video recording of interviews

A re-examination of procedural reform

1. Procedures governing the admissibility of admissions

and confessions: the “voir dire” and

the “alternative procedure”

A definition of “voluntariness”

The court’s residual discretionary power

The admissibility of a confession and the “voir dire” procedure

The admissibility of a confession and the “alternative procedure”

2. Comparative study of law and practice in

other jurisdictions

Introduction

Australia

Canada

England and Wales

Malaysia

New Zealand

Scotland

Singapore

South Africa

3. Options for reform

Reasons for reform

Arguments in favour of continued use of the voir dire

Options for reform

Option A - Granting the court a discretion to direct that the

question of admissibility be dealt with in the presence of the

jury

Option B - Making the determination of the issue of admissibility

of confession statements a matter for the jury in all cases

Option 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

Changing the standard of proof

Conclusion

Introduction

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1. This consultation paper seeks comment on a number of options for reform of the way in which the admissibility of confession statements is determined in criminal cases. Specifically, it endeavours to identify ways to reduce the extensive time and resources devoted in jury trials to the hearing of evidence at a “trial within a trial” (or voir dire, as it is termed by lawyers) as to whether or not a confession statement was made voluntarily. It must be stressed at the outset that this paper is concerned only with that narrow compass of procedural reform, and does not attempt to examine substantive matters of law, or the procedures for taking statements from accused persons.

Background

2. In October 1985, in response to concerns as to the amount of court time which was devoted to the hearing of objections in criminal trials to the admissibility of statements taken by the police from accused persons, the Law Reform Commission published its Report on Confession Statements and their Admissibility in Criminal Proceedings (the Report).

3. The Report made a wide range of recommendations for reform, covering both substantive law and procedural matters. The Report looked not only at the procedure adopted in court for determining the admissibility of confession statements, but also at the practice adopted in the taking of such statements. Among the Report’s recommendations was the establishment of a clear framework for the taking of confession statements from suspects. In addition, the Report recommended that, when the prosecution might wish to adduce at any subsequent trial evidence of a statement made by the accused, the accused should be brought before a Justice of the Peace within 24 hours of being charged, where he would be given the opportunity to raise any complaint as to his treatment since arrest. The record of the JP’s interview would be tape recorded and would be admissible at trial. The purpose of the proposed scheme was to provide an early opportunity for the accused to raise any complaint of police impropriety, and so to enable its prompt investigation, and to discourage objections to the admissibility of a confession statement being first raised at trial.

4. It was always the Commission’s stated intention that the proposals put forward in the Report should be treated as a package, and that one part of the scheme should not be implemented in the absence of another. Taken together, the Commission believed that the Report’s recommendations would significantly reduce the amount of court time devoted to voir dire hearings, by reducing the frequency of objections to the admissibility of confession statements. In the event, the Administration rejected the Commission’s recommendations. However, many of the Report’s recommendations are in fact reflected in the Rules and Directions For the Questioning of Suspects And The Taking of Statements (the Rules and Directions)¹ which were promulgated by the then Secretary for Security in October 1992 for the purpose of providing clear guidelines on the questioning and taking of statements from suspects by members of the Hong Kong Police Force, the Customs and Excise Department, the Immigration Department and the Independent Commission Against Corruption.

Video recording of interviews

5. A further significant development since the publication of the earlier Report has been the increasing use of video recording in the taking of statements from accused persons. The reasonable expectation would be that the use of such facilities would lead to a significant reduction in the number of objections taken at trial to the admissibility of confession statements. This would in turn reduce the amount of court time to be devoted to the hearing of objections to the admissibility of statements taken from accused persons.

6. The Independent Commission Against Corruption (ICAC) first began experiments with the videotaping of interviews in March 1989. In 1991, the video system became the established method of interviewing suspects, and progressively more interviewing facilities were made available. Since 1997, virtually all interviews have been conducted with the use of video. The number of voir dire hearings which have arisen from video recorded interviews are shown in Table 1 below, while Table 2 shows the equivalent figures arising from interviews recorded in writing over the same period.

Table 1 - No of voir dires arising from video recorded ICAC interviews

Table 2 - No of voir dires arising from written records of ICAC interviews

7. The ICAC “are absolutely convinced that [videotaping] is the fairest and most equitable means of recording interviews of suspects by law enforcement officers.”² They point out that its advantages include the fact that “it is very difficult to dispute the actual content of an interview when the interview is recorded on videotape, and the lack of opportunity for suspects to make unfounded allegations - criminal or otherwise - against law enforcement officers in respect of the actual interviews.”

8. Videotaping of interviews by the Police was first introduced in 1993. There are currently 10 Video Interview Rooms to interview persons whose cases are likely to be heard in the District Court or the Court of First Instance of the High Court, and a total of 60 are planned by October 1998, with each major police station to be provided with at least one such facility. Table 3 shows a comparison between the rates of challenge to videotaped and non-videotaped interviews by the Police.

Table 3 - Comparison of challenges in court to videotaped

and non-videotaped Police interviews in 1997³

9. It is clear from both the ICAC and Police experience that the use of videotape has proved effective in reducing the number of challenges to the admissibility of confession statements, and that where objection is raised there is less likelihood that the statement will subsequently be rejected where the interview has been videotaped.

A re-examination of procedural reform

10. While the changes which have been introduced in respect of the questioning of suspects have had some impact on the frequency of voir dire proceedings, the problem remains that substantial court time has to be devoted to the hearing of objections to the admissibility of confession statements.

11. In a letter to the Secretary of the Commission of 12 January 1998, Mr Justice Litton suggested that it would be timely for the Commission to re-examine the issue of admissibility of confession statements afresh. He pointed out that criminal trial judges hold the view that the process by which the question of admissibility of confession statements is considered separate from evidential weight is unsatisfactory. This is particularly so in jury trials. Much court time is at present spent by the judge sitting alone hearing the witnesses in a voir dire to determine admissibility, only to have the same witnesses called over again before the jury to consider the question of evidential weight, once the confession statement is admitted.

12. In the light of Mr Justice Litton’s letter, the Commission considered at its meetings in April and June 1998 the existing procedure for the admission of confessions statements in criminal proceedings and examined the approach adopted in a number of overseas jurisdictions. They concluded that the procedural aspects of the determination of the admissibility of confession statements at trial should be re-examined. This consultation paper is the result. It endeavours to set out in Chapter 1 as background information the existing law and procedures that govern the admissibility of confession statements; examines in Chapter 2 the relevant procedures adopted by a number of overseas jurisdictions, and in Chapter 3 presents a number of possible options, with their respective advantages and disadvantages, for procedural reform. It should be stressed at the outset that this paper confines itself to the procedural question as to how the admissibility of confession statements is determined at trial, and does not venture into matters of substantive law, or of the procedures to be adopted for the questioning of suspects by law enforcement agencies.

13. At this stage, the Commission has reached no firm view as to which of these options should be pursued, and the present paper is issued to provoke public discussion on the issues raised. The Commission welcomes views on this paper and the options for reform it presents.

Chapter 1 - Procedures governing

the admissibility of admissions and confessions: the “voir dire” and

the “alternative procedure”

_______________________________

1.1 The nature of confession statements is set out in a chapter entitled “A Layman’s Introduction to the Admissibility of Confession Statements” in the Commission’s earlier Report:⁴

“When, in the course of an investigation into a criminal offence, a suspect has made a statement to the police tending to show that he has committed that offence, the statement is known as a confession. If the suspect is subsequently charged with committing the offence, the prosecution may wish to use that statement as evidence in support of its case against the defendant. However, before the prosecution can use that statement as evidence against a defendant who objects to it being put in evidence, the trial judge has to decide whether to allow the prosecution to do so, or, as lawyers would say, the trial judge has to rule whether the statement is admissible in evidence. In order to be able to rule that the confession is admissible, the judge has to be satisfied that the confession was made by the defendant voluntarily. He decides that question after hearing evidence from witnesses about the circumstances in which the defendant made the confession. If, after hearing that evidence, the judge is not entirely satisfied that the confession was made voluntarily, he has to rule that the confession is inadmissible in evidence. The prosecution cannot use it as evidence against the defendant, and what may be a very important part of its case against him is lost.”

1.2 In a strict sense, the words “admission” and “confession” are slightly different in meaning. However, the law relating to their admissibility in evidence is the same⁵ and for the purposes of this paper we use the term “confession” to include an admission.

1.3 In essence, a confession can be made in writing or orally by a suspect to a “person in authority”.⁶ The content of this statement can be either partially or wholly incriminating implicating the suspect in the offence(s) subsequently laid against him. In certain circumstances, the gesture, action, conduct, demeanour (or, indeed, any reaction) of a suspect in the face of questions put to him could also amount to a confession.

1.4 In a trial, the prosecution might wish to adduce a confession as evidence of the guilt of an accused. In general, a confession can only be admitted in evidence if the trial judge is of the opinion that the statement has been obtained from the accused “voluntarily”.

A definition of “voluntariness”

1.5 It is a fundamental principle that for a confession to be admitted as evidence for the jury’s consideration, the trial judge must be sure, or be satisfied beyond reasonable doubt in a trial within a trial (known by lawyers as a voir dire), that the confession was made “voluntarily” by the defendant.

1.6 In Ibrahim v R, Lord Sumner defined the concept of “voluntariness” as follows:

“It has long been established as a positive rule of English Criminal law, that no statement by the accused is admissible 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.”⁷

1.7 This definition of Lord Sumner was followed by the House of Lords in Commissioners of Customs & Excise v Harz & Power⁸ and DPP v Ping Lin.⁹ In R v Sang,¹⁰ Lord Salmon held that a confession obtained as a result of threats or promises would be unfair to the accused. A confession statement obtained in such a way would be inadmissible as evidence.

1.8 These judicial decisions are followed in Hong Kong and it is clear that “a statement is involuntary, and so inadmissible, if it was obtained by threats, promises, oppression or ‘deception’”.¹¹

1.9 The test for “voluntariness” set out in the line of authorities quoted above is reflected in the Rules and Directions. Note (e) to the Rules and Directions provides as follows:

“... it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression.”

1.10 In short, a confession obtained by force, threat of force, hope of advantage or oppression exercised or held out by a person in authority such as a police officer involved in the investigation or the interview of a suspect will render the statement inadmissible.

The court’s residual discretionary power

1.11 Even where a confession is voluntarily made, a trial judge may exercise his residual discretionary power to refuse to admit the confession if he is of the opinion that on all the evidence before him, or in the light of all the material circumstances, it would be unfair to the defendant to admit the confession in evidence. In R v Sang, Lord Diplock explained how this discretion should be exercised:

“So I would hold that there has now developed a general rule of practice whereby in a trial by jury the judge has a discretion to exclude evidence which, though technically admissible, would probably have a prejudicial influence on the minds of the jury, which would be out of proportion to its true evidential value.”¹²

1.12 In the same judgment, however, Lord Diplock held that this discretion should seldom be exercised:

“... the function of the judge at a criminal trial as respects the admissibility of evidence is to ensure that the accused has a fair trial according to law. It is no part of a judge’s function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them. If it was obtained illegally there will be a remedy in civil law; if it was obtained legally but in breach of the rules of conduct for the police, this is a matter for the appropriate disciplinary authority to deal with. What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained, but with how it is used by the prosecution at the trial. A fair trial according to law involves ... that there should be excluded from the jury information about the accused which is likely to have an influence on their minds prejudicial to the accused which is out of proportion to the true probative value of admissible evidence conveying that information.”¹³

He went on:

“... the fairness of a trial according to law is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted. However much the judge may dislike the way in which a particular piece of evidence was obtained before proceedings were commenced, if it is admissible evidence probative of the accused’s guilt it is no part of his judicial function to exclude it for this reason.”¹⁴

1.13 The principle that such a residual discretion of the judge should be sparingly used was again restated in R v Lam Yip-ying:

“The power to exclude confessions on the ground of unfairness should seldom be employed. First, because it involves the judge in withdrawing relevant and admissible evidence from the jury, whose function it is to weigh such evidence. Secondly, because in almost all cases, the kind of conduct which would constitute ‘unfairness’ should already have excluded the confession as involuntary.” ¹⁵

1.14 Although a breach of the various provisions of the Rules and Directions would not automatically lead to the exclusion of a confession (as the Rules and Directions are rules of practice for the guidance of law enforcement officers, rather than rules of law), that breach might be a factor to be considered by the trial judge in any exercise of his discretion to exclude the confession on the grounds that its prejudicial effect outweighed its probative value.

The admissibility of a confession and the “voir dire” procedure

1.15 We turn now to consider the relevant procedure currently adopted in the Court of First Instance of the High Court where an accused is tried by a judge and a jury. Where the prosecution has indicated its intention to produce a confession in evidence, it is the duty of the prosecution to prove beyond reasonable doubt that the confession was obtained voluntarily. In R v CHU Chi-kwong, it was held that:

“... the burden of proof lay throughout on the prosecution to prove that the alleged confession was voluntary; and it was open to an accused, even where the accused denied making any confession, to ask the trial judge to rule (either in a voir dire or during the trial) on the admissibility of the alleged confession.”¹⁶

1.16 In the case where the admissibility of the confession statement is not objected to or challenged by the defence, the statement would generally be admitted once the relevant prosecution witness, usually the statement taker, has testified to the voluntariness of the statement. The usual ground for objection by the defence is that the statement was obtained involuntarily from the accused. The question of whether or not the statement is admissible is a question of law, and as such must be decided by the judge, rather than by the jury, who are masters of fact. Admissibility is normally determined in the absence of the jury following a voir dire, and this procedure is outlined in the Commission’s earlier Report:

“Where a criminal trial is being conducted before a jury and the judge has to decide whether a confession is admissible, he hears evidence on the matter and makes his ruling normally in the absence of the jury. When that question is about to arise in the course of the trial, the judge, at the request or with the consent of the defence, asks the jury to withdraw and to remain out of court until he has made his ruling. If, after hearing the evidence on the matter, the judge rules that the confession is admissible, the jury is asked to return to court and the confession is put before them for their consideration as part of the evidence against the defendant. If on the other hand the judge rules that the confession is inadmissible, the jury, on their return to court, is not told anything about a confession having been made by the defendant. The judge has ruled that the confession cannot be used in evidence so the jury cannot be allowed to consider it or even know that a confession was made. Lawyers call that part of the proceedings when the jury is out of court ‘a trial within a trial’ or ‘a voir dire’.”¹⁷

1.17 The practice was summarised by the Privy Council in Ajodha v The State (P.C.):

“In a simple case, where the sole issue is whether the statement, admittedly made by the accused, was voluntary or not, it is a commonplace that the judge first decides that issue himself, having heard evidence on the voir dire, normally in the absence of the jury. If he rules in favour of admissibility, the jury will then normally hear exactly the same evidence and decide essentially the same issue albeit not as a test of admissibility but as a criterion of the weight and value, if any, of the statement as evidence of the guilt of the accused.”¹⁸

1.18 Thus, when the admissibility of a confession is challenged or objected to by the defence, the prosecution must adduce evidence by calling witnesses to testify as to the circumstances leading to the giving of the confession statement. On hearing all the evidence relating to the circumstances in which the defendant made the confession, the trial judge can proceed to rule on the admissibility of the confession. As explained earlier, a confession will be ruled inadmissible if the trial judge is of the opinion that the prosecution has failed to prove beyond reasonable doubt that the confession was given voluntarily by the accused. On the other hand, if the trial judge is satisfied that the confession was given voluntarily by the accused, it would generally be admitted in evidence against the accused, save where the judge has exercised his residual discretionary power to exclude otherwise admissible evidence.

1.19 The reason for excluding the jury from court while the trial judge is hearing evidence relevant to admissibility is that:

“If members of the jury remained in court, they would learn that the defendant had made a confession and perhaps also what he had said in it. If the judge then ruled that the confession was inadmissible, he would have to tell them to ignore the confession when they came to decide whether the defendant was guilty or not. The jury would find it extremely difficult to put out of their minds the fact that the defendant had confessed. Even if each one of them did manage to put that fact out of his mind, there would always remain the lurking suspicion that the jury had taken into account against the defendant a matter which was not allowed to form part of the prosecution’s case against him.”¹⁹

1.20 Normally, a voir dire on the “special issue” of admissibility of a confession statement is held before a jury is empanelled as the defence would in most cases indicate in the pre-trial review its intention to object. However, there is nothing to prevent the holding of a voir dire after the jury has been empanelled.

1.21 In a voir dire, only matters relevant to the circumstances in which the defendant had made the confession will be heard. In other words, only evidence relevant to the “special issue” as opposed to the “general issue” of guilt or innocence of the accused will be heard by the trial judge in the absence of the jury. If the confession is ruled admissible, the witnesses testify again in the main trial in the presence of the jury on matters leading to the obtaining of the confession. The jury then decides on the weight to be attached to this testimony, the credibility of each witness, and the truth of the confession before they finally decide on the guilt or innocence of the accused. The defence is entitled to lead evidence in the main trial before the jury that the accused had not in fact made the statement, or that its content was fabricated by the law enforcement officer, or that the statement made by the defendant was untrue as he was compelled to give the statement under threat, force or inducement. In these circumstances, evidence relevant to the admissibility of the confession which was previously presented by witnesses in the voir dire will have to be adduced again for the consideration of the jury. On this occasion, however, the question to be determined is not the admissibility of the statement (which is a decision for the judge alone) but the weight to be attached to the statement. The result, nevertheless, is that the same witnesses must be called twice to give substantially the same evidence: once in the voir dire and again in the trial proper. It was the consequent lengthening of the trial process which prompted an examination of the problem by the Commission and the proposals contained in the Commission’s earlier Report.

1.22 The voir dire conducted in the absence of the jury is not a mandatory procedure. On the defence’s request, the question of admissibility of a confession can be dealt with in the presence of the jury albeit the issue of admissibility, being a question of law, remains to be decided by the judge. In Ajodha v The State, it was held that:

“Though the case for the defence raises an issue as to the voluntariness of a statement in accordance with the principles indicated earlier in this judgment, defending counsel 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. If the defence adopts this tactic, it will be open to defending counsel to submit at the close of the evidence that, if the judge doubts the voluntariness of the statement, he should direct the jury to disregard it, or, if the statement is essential to sustain the prosecution case, direct an acquittal. Even in the absence of such a submission, if the judge himself forms the view that the voluntariness of the statement is in doubt, he should take the like action proprio motu.”²⁰

However, it is rare for a request to be made to hold a voir dire in the presence of the jury and the usual practice is for the voir dire to be conducted in their absence.

The admissibility of a confession and the “alternative procedure”

1.23 As mentioned earlier in this chapter, the main reason for excluding the jury from the voir dire proceedings is the concern that if they remain in court when the issue of admissibility is heard, and the confession is subsequently ruled inadmissible, they may find it extremely difficult to put out of their minds the fact that the defendant had confessed. However, for cases heard and adjudicated by a single judge without a jury, the situation is different. The magistrates courts and the District Court in Hong Kong are courts presided over by a single judge. In these courts, the trial magistrates and judges are judges both of law and facts. They are professional judges and are presumed to be able to put out of their minds the fact that a defendant had confessed should they rule on hearing the relevant evidence that the confession is inadmissible as it was obtained involuntarily. A special procedure called the “alternative procedure” is generally adopted in these courts which avoids the need to call on the same witness to give evidence twice where a confession is challenged. Although parties in these courts are still entitled to have the special issue of admissibility of a confession dealt with in a “voir dire”, the prevailing practice is that most cases are dealt with by way of the “alternative procedure”.

1.24 The “alternative procedure” was approved in Ho Yiu-fai & others v R.²¹ Under this procedure, the judge or the magistrate records any objection to the admission of the confession at the time when the prosecution seeks to adduce it in evidence. The confession is marked “provisional prosecution exhibit” and the magistrate or the judge then proceeds to hear evidence from all prosecution witnesses, both on the special issue of admissibility of the confession and on the general issue of the guilt or innocence of the accused. The prosecution witnesses are then cross-examined by the defence on matters arising from both issues. After the prosecution witnesses have completed their testimony on both issues, the magistrate or the judge proceeds to rule on whether there is a case to answer for the accused in respect of the special issue of admissibility. If there is a case to answer on the special issue, the accused can elect to give evidence or to call upon his own witnesses to give evidence. However, at this stage, the evidence to be given by the accused or his witnesses, both in examination-in-chief and cross-examination, is restricted to matters relevant to the special issue of admissibility of the confession and does not extend to the general issue of guilt or innocence. When the defence evidence on the special issue has been heard, the magistrate or the judge rules on the question of admissibility. If the confession is ruled admissible, it is admitted in evidence as a “prosecution exhibit”. The prosecution then formally closes its case and the trial continues in the normal way, with the accused electing whether or not he and any defence witnesses will give evidence on matters relating to the general issue. Bruce and McCoy explain:

“Following the ruling on the admissibility of the admission or confession in cases using the alternative procedure, the case for the prosecution closes. From that point, the procedure of the trial is the same as a normal criminal trial. The only exception is that a practice has developed that if the accused or a witness called by the accused gave evidence on the issue of admissibility of the admission or confession, and again gives evidence on the general issue, the court simply allows the accused or the witness called by him to confirm their earlier testimony rather than having the evidence given on the admissibility issue repeated again. However, that renders him liable to further cross-examination either on matters germane to the facts and circumstances concerning the special issue as well as topics relevant to the general issue. If the accused does not choose to testify in the general issue the testimony he gave in the alternative procedure is not available on the general issue.”²²

Chapter 2 - Comparative study

of law and practice in other

jurisdictions

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Introduction

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.

Australia

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.

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