The Law Reform Commission of Hong Kong

Hearsay in Criminal Proceedings

Sub-committee

Consultation Paper

Hearsay in Criminal Proceedings

This consultation paper can be found on the Internet at:

<http://www.hkreform.gov.hk>

November 2005

This Consultation Paper has been prepared by the Hearsay in Criminal Proceedings Sub-committee of the Law Reform Commission. It does not represent the final views of either the Sub-committee or the Law Reform Commission, and is circulated for comment and discussion only.

The Sub-committee would be grateful for comments on this Consultation Paper by 28 February 2006. All correspondence should be addressed to:

The Secretary

The Hearsay in Criminal Proceedings

Sub-committee

The Law Reform Commission

20th Floor, Harcourt House

39 Gloucester Road

Wanchai

Hong Kong

Telephone: (852) 2528 0472

Fax: (852) 2865 2902

E-mail: hklrc@hkreform.gov.hk

It may be helpful for the Commission and the Sub-committee, either in discussion with others or in any subsequent report, to be able to refer to and attribute comments submitted in response to this Consultation Paper. Any request to treat all or part of a response in confidence will, of course, be respected, but if no such request is made, the Commission will assume that the response is not intended to be confidential.

It is the Commission's usual practice to acknowledge by name in the final report anyone who responds to a consultation paper. If you do not wish such an acknowledgment, please say so in your response.

Preface

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Terms of reference

1. In May 2001, the Chief Justice and the Secretary for Justice directed the Law Reform Commission:

To review the law in Hong Kong governing hearsay evidence in criminal proceedings, and to consider and make such recommendations for reforms as may be necessary.

The Sub-committee

2. Following that referral, a sub-committee was appointed by the Commission. Its membership is:

Hon Mr Justice Stock (Chairman)	Justice of Appeal
Peter Chapman	Senior Assistant Director of Public Prosecutions Department of Justice
Alan Hoo, SBS, SC, JP	Senior Counsel
Andrew Lam	Solicitor
Gerard McCoy, SBS, QC, SC	Senior Counsel Professor of Law, City University of Hong Kong Adjunct Professor of Law, University of Canterbury, New Zealand
Anthony Upham	Associate Professor School of Law City University of Hong Kong
H H Judge Wright	Judge of the District Court
Simon Young	Associate Professor Faculty of Law University of Hong Kong
Peter Sit	Secretary

Working method

3. It was apparent from the introductory meeting on 30 August 2001 that the subject matter and the approach to it might be controversial, the question having been raised at that very first meeting whether there would be room for a minority report. It was agreed that the first question to address was whether there were any existing problems with the law as it now stood. The work of the committee became complex, requiring detailed study of the rationale for the rules and their exceptions, of criticisms made in common law jurisdictions of the present state of the law, whether those criticisms were valid in Hong Kong, and of solutions proposed elsewhere.

4. All this required preparation of papers by individual committee members, the co-option of further members, and the formation of subgroups to prepare suggested solutions and drafts.

5. There was a proposal early on that the question be put to the Bar Association whether there was a perceived problem with the existing rules. The majority of the sub-committee failed, however, to see that that would be a useful exercise, since any response would be without the benefit of a detailed exposition of the rules, which are complex, the suggested problems, and of studies elsewhere. Yet the question was in fact put to the Criminal Law and Procedure Committee of the Law Society by the Chairman of that Committee, who is also a member of the sub-committee, who informed the sub-committee on 26 November 2001 that all the members of that Committee considered that the law did not require amendment (see paragraph 4.3 below).

6. The provisional recommendations set out in this consultation paper are the product of extensive research and detailed debate. The process has been lengthy and has included the production of no fewer than 73 papers directed at specific issues of discussion

7. The Sub-committee met on 19 occasions.

What is "the rule against hearsay"?

8. The rule against hearsay in criminal proceedings renders hearsay evidence generally inadmissible in criminal proceedings unless that evidence falls within one of the common law or statutory exceptions to the rule. A simple explanation of the term hearsay would be that "when A tells a court what B has told him, that evidence is called hearsay".¹ The need to exclude hearsay evidence when it is adduced to prove the truth of the original statement is mainly based on the assumption that indirect evidence might be untrustworthy and unreliable, particularly in so far as it is not subject to cross-examination. The law's requirement that only first hand testimony of the statement-maker can be admitted in evidence ensures that the witness's credibility and accuracy can be tested in cross-examination.

Criticisms of the rule and reform in other jurisdictions

9. Despite this rationalisation, the hearsay rule has been the subject of widespread criticism over the years from academics, practitioners and the Bench. One of the main criticisms is that the rule is strict and inflexible, and excludes hearsay evidence even if it is cogent and reliable.² The inadmissibility of hearsay evidence that is otherwise cogent and relevant to the determination of the guilt or innocence of an accused sometimes results in the exclusion of evidence which by standards of ordinary life would be regarded as accurate and reliable. This can result in absurdity and also in injustice.

10. The complexity of the rule and the lack of clarity of its exceptions have also been criticised. Lord Reid in Myers v DPP³ described the rule as "absurdly technical"⁴ and observed that "it is difficult to make any general statement about the law of hearsay which is entirely accurate."⁵

11. In the light of these criticisms, proposals for reform have been put forward in every common law jurisdiction where the subject has been studied for the purpose of reform. As noted above, the law of hearsay is a topic which many other jurisdictions have recognised as being in need of attention. In each instance where a review has been carried out, there has been recognition of the need for change.

Consultation paper

12. This consultation paper sets out in Chapter 1 the history and nature of the rule against hearsay in criminal proceedings; examines in Chapter 2 the justification for the rule; sets out in Chapter 3 the present law that governs the admissibility of hearsay evidence in criminal proceedings; and examines in Chapter 4 the shortcomings of the existing law. Chapter 5 describes reforms that have been proposed or carried out in other common law jurisdictions; explains in Chapter 6 the need for reform; examines in Chapter 7 the notion of introducing safeguards as a condition for reform; and presents in Chapter 8 a number of possible options for reform, with their respective advantages and disadvantages. Chapter 9 introduces the proposed model of reform ("the Core Scheme") ; deals with a number of special topics in Chapter 10; addresses the issue of human rights in Chapter 11; and in Chapter 12 summarises all our recommendations for reform.

13. The purpose of this consultation paper is to elicit comment on the suggested need for reform and on the way in which the hearsay law should be shaped in Hong Kong. We remain open minded as to the best way forward, and seek input from the community on the preferred proposal.

Chapter 1

Brief history of the hearsay rule

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1.1 The rule against hearsay is a rule of admissibility historically applied by common law courts to all civil and criminal proceedings. The rule excludes from the trial evidence of statements made outside the courtroom where it is proposed to use them at trial to prove the facts narrated or asserted in them. Thus, the statement from a police witness, "The victim told me at the scene that the car that struck him was green", would be inadmissible to prove that the assailant's car was in fact green.

1.2 The hearsay rule is an exception to the general rule that all relevant evidence is admissible. As a common law rule that has existed for hundreds of years, it is integral to an adversarial system that places a premium on proof by live testimony from witnesses. While significant reforms of the rule were made in the context of civil proceedings in 1999, the law of hearsay has remained relatively constant in Hong Kong criminal proceedings. The present law can be described as an exclusionary rule that excludes a statement made outside the courtroom which is used to prove the truth of an assertion contained in the statement, unless a common law or statutory exception to the rule applies to make the statement admissible.

1.3 The rule against hearsay developed over many years. According to "Kenny's Outlines of Criminal Law", the need to exclude hearsay evidence was first recognised in England as early as 1202.⁶ There is no conclusive view as to the predominant rationale for the rule, as Colin Tapper observes:

"No aspect of the hearsay rule seems free from doubt and controversy, least of all its history. Legal historians are divided between those who ascribe the development of the rule predominantly to distrust of the capacity of the jury to evaluate it, and those who ascribe it predominantly to the unfairness of depriving a party of the opportunity to cross-examine the witness."⁷

1.4 Though the possible dangers of hearsay evidence were first recognised in England in the thirteenth century, hearsay evidence continued to be freely admitted.⁸ By the end of the fifteenth century, with a clearer distinction being drawn between the functions of jurors and witnesses, there began a growing recognition of the need to ensure greater reliability of testimony from witnesses. It was from this time onwards that the rule excluding hearsay from witnesses began to take shape, and by 1660 hearsay evidence was "only received after direct evidence had been given, and merely to corroborate it, and thus not admissible of itself."⁹ In the Auld Report, it is said that the rule against hearsay in criminal proceedings developed at a time when “the cards at trial were so stacked against defendants that judges felt the need to even the odds.”¹⁰

1.5 In 1664, Lord Jeffreys CJ ruled that what a witness heard from a woman (who was not herself competent to give evidence) could not be given in evidence:

"If she were here herself, if she did say it, and would not swear to it, we could not hear her; how then can her saying be evidence before us?"¹¹

1.6 By the beginning of the nineteenth century, the hearsay rule had become well established, and the emphasis shifted to definition of its range and the creation of exceptions to the rule.¹² In this second phase of development of the hearsay rule, two alternative approaches competed with each other: one was that all hearsay should be excluded, subject to inclusionary exceptions; while the other was that relevant evidence should be admitted, subject to exclusionary exceptions.¹³ The former view prevailed and led to the establishment of the present hearsay rule and the creation of the various common law exceptions to the rule.

1.7 The English courts have been reluctant to create new exceptions to the rule, preferring the task to be done by the legislature. Lord Reid in the House of Lords case of Myers v DPP explained why it was necessary to leave reform for legislative intervention:

"But there are limits to what we can or should do. If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations: that must be left to legislation. And if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce finality or certainty. If we disregard technicalities in this case and seek to apply principle and common sense, there are a number of other parts of the existing law of hearsay susceptible of similar treatment, and we shall probably have a series of appeals in cases where the existing technical limitations produced an unjust result. If we are to give a wide interpretation to our judicial functions questions of policy cannot be wholly excluded, and it seems to me to be against public policy to produce uncertainty. The only satisfactory solution is by legislation following on a wide survey of the whole field, and I think that such a survey is overdue. A policy of make do and mend is no longer adequate."¹⁴

1.8 Notwithstanding the strong dissenting opinions of Lords Pearce and Donovan in Myers, both of whom strongly favoured gradual judicial development of the rule, England has respected the majority view and enacted piecemeal reform whenever the need has arisen. In its most recent reforms, however, contained in the Criminal Justice Act 2003, the hearsay rule in criminal proceedings has been comprehensively reformed, making hearsay more freely admissible.¹⁵

1.9 While the Court of Final Appeal has yet to decide the propriety of judicial reforms, the following obiter dictum in Wong Wai-man v HKSAR indicates that the view is taken that the proper path for reform is legislative:

"It is true that it was only by a majority of three to two that the House of Lords held in Myers v DPP [1965] AC 1001 that it was for the Legislature, rather than the Judiciary, to create new exceptions to the hearsay rule. And in R v Khan (1990) 59 CCC (3d) 92, the Supreme Court of Canada preferred the approach of the minority in Myers v DPP. But it did so without referring to - and perhaps without the benefit of having cited to it - R v Blastland [1986] AC 41. In R v Blastland, all the other Law Lords hearing the appeal agreed with Lord Bridge of Harwich who (at p.52H) referred to the principle established in Myers v DPP ‘never since challenged, that it is for the Legislature, not the Judiciary, to create new exceptions to the hearsay rule’. In Bannon v R (1995) 185 CLR 1, a case before the High Court of Australia, Brennan CJ said (at p.12) that the creation of a new exception to the hearsay rule 'would require a general review of the hearsay rule, its history, purpose and operation'. The Law Reform Commission would appear to be the best body suited to conduct such a general review."¹⁶

1.10 To date, the hearsay rule in respect of criminal proceedings has seen no comprehensive legislative review in Hong Kong, though the hearsay rule in Hong Kong civil proceedings was essentially abolished in 1999 following recommendations made by the Hong Kong Law Reform Commission.¹⁷

Chapter 2

Justification for the hearsay rule

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2.1 In Teper v The Queen, Lord Normand stated the underlying reasons for the hearsay rule succinctly:

"The rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination and the light, which his demeanour would throw on his testimony, is lost."¹⁸

The Supreme Court of Canada articulated similar reasons in terms of three "hearsay dangers":

"the absence of an oath or solemn affirmation when the statement was made, the inability of the trier of fact to assess the demeanour and therefore the credibility of the declarant when the statement was made (as well as the trier's inability to ensure that the witness actually said what is claimed), and the lack of contemporaneous cross-examination by the opponent."¹⁹

2.2 Which reason is the preponderant one is a moot point. For example, R W Baker accepts Phipson's point that " … no single principle can be assigned as having operated to exclude hearsay generally … "²⁰, and it is probably safer to assume that a combination of reasons have played their part. On the other hand, A.A.S. Zuckerman asserts that, "[i]t is the unavailability of a hearsay declarant for cross-examination which constitutes the central reason for the exclusion of hearsay statements."²¹

2.3 It is important to note that much hearsay evidence which is inherently reliable, because of the circumstances in which it came into being, nonetheless is excluded. Much hearsay evidence may be relevant and credible, though Bruce and McCoy point out that:

"Experience demonstrates that a witness relating an event he has seen, heard or otherwise experienced first hand is more likely to give an accurate account of that event than if he is relating what another person experienced."²²

Lord Bridge in R v Blastland makes the point that it is not mere unreliability that is of concern, but the lack of opportunity to test the evidence, particularly where lay tribunals are involved:

"Hearsay evidence is not excluded because it has no logically probative value.…The rationale of excluding it as inadmissible, rooted as it is in the system of trial by jury, is a recognition of the great difficulty, even more acute for a juror than for a trained judicial mind, of assessing what, if any, weight can properly be given to a statement by a person whom the jury have not seen or heard and who has not been subject to any test of reliability by cross-examination…. The danger against which this fundamental rule provides a safeguard is that untested hearsay evidence will be treated as having a probative force which it does not deserve."²³

2.4 Professor Zuckerman reminds us of a fourth reason for excluding hearsay, in addition to the lack of cross-examination, the absence of an oath, and the lack of an opportunity to assess the witness’s demeanour. While cross-examination has utilitarian value in testing the reliability of evidence, it also has intrinsic value in the notion of confronting one's accuser. In the United States, the accused's right of confrontation is of constitutional significance²⁴. Zuckerman writes,

"Hearsay is associated with unsubstantiated beliefs based on rumour, gossip, and specious word of mouth. Hence our belief that the accused should be judged on the evidence produced against him in court and not on the basis of public preconceptions explains the intuitive antagonism to hearsay. The right to confrontation in the Sixth Amendment of the United States constitution is, to some extent, an expression of this antagonism. This provision accords to an accused in a criminal trial the right 'to be confronted with the witnesses against him.' While there is no complete overlap between the right to confrontation and the hearsay rule it is clear that there is considerable similarity in the concerns behind these two measures. A further justification of the American right to confrontation is said to be 'its psychic value to litigants, who feel that those giving evidence against them should do it publicly and face to face.'"²⁵

2.5 In summary, there appear to be two main justifications for the hearsay rule: firstly, the inability of the tribunal of fact to weigh and assess hearsay properly without the usual tests and safeguards of reliability, such as cross-examination, an oath or affirmation, and the opportunity to assess the witness’s demeanour; secondly, the admission of hearsay in the prosecution's case is antithetic to an accused's right of confrontation.

Chapter 3

The present law

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Scope of the hearsay rule

(A) Statement and definition of the rule

3.1 The classic statement of the hearsay rule is found in Subramaniam v Public Prosecutor:

"Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that a statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made."²⁶

3.2 The definition laid down in Subramaniam has since been followed in Hong Kong.²⁷ In Cross & Tapper on Evidence, the rule against hearsay is stated in terms of the assertion contained in the statement:

"an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted"²⁸.

3.3 More recently, appellate courts in Hong Kong have cited the definition used in the Australian case of Walton v The Queen.²⁹ In the Court of Final Appeal's consideration of Wong Wai-man v HKSAR, the Walton definition was cited as follows:

"The hearsay rule applies only to out-of-court statements tendered for the purposes of directly proving that the facts are as asserted in the statement" [emphasis in original].³⁰

3.4 Thus, if the purpose of adducing the statement is to prove the truth of an assertion contained in the statement then the hearsay rule will be triggered. But if the statement is being used as original evidence to prove a fact in issue then the hearsay rule will not be infringed. A statement can be used as original evidence to prove a fact in issue in one of two ways: directly or circumstantially. If the fact in issue was whether officer A gave the defendant a caution before taking his confession, then officer B, who was present at the time, is allowed to give evidence of what officer A said to the defendant as this could be direct evidence of a caution. Similarly, if the fact in issue was whether the victim threatened the defendant just before the alleged offence, a person present at the time is allowed to testify to what the victim said to the defendant as this would be direct evidence of a threat.

3.5 An out-of-court statement can also be an item of original circumstantial evidence used to prove a fact in issue. The Privy Council case of Ratten v The Queen³¹ offers a good illustration. In Ratten, the deceased was shot dead by her husband (the appellant), who was subsequently convicted of murder. The defence asserted at the trial that the gun had accidentally discharged while the appellant was cleaning it. On appeal, the Privy Council was asked to decide whether the evidence of a telephone operator who testified that she had received a call at the material time from a sobbing and hysterical woman calling from the home of the deceased and the appellant, asking for the police, would amount to hearsay. It was held that the telephone operator's testimony of a statement from a sobbing and hysterical female to "Get me the police, please" was not hearsay as the statement was original evidence of the female caller's state of mind or emotional state. It was relevant as an item of circumstantial evidence that tended to rebut the appellant's defence of accident.³²

3.6 The recounting by the telephone operator of the words of the female caller was not hearsay because the purpose of repeating the telephone message was merely to prove a factual situation (ie, the fact that a call was made from a sobbing and hysterical female at a certain time and from a certain place), and not the truth of the content of the statement.³³

(B) Implied assertions

3.7 In the House of Lords case of R v Kearley, a majority of the Law Lords confirmed that implied assertions came within the definition of hearsay.³⁴ Most hearsay involves statements that contain an express assertion of facts. In Kearley, the majority held that even if there was neither an express nor intended assertion in the statement or conduct, the hearsay rule could still be infringed if proof of the fact in issue involved an implied assertion from the evidence.

3.8 In R v Kearley, the police arrested the defendant at his home after finding a small quantity of drugs and stolen property. While the police were still on the premises, a number of telephone calls were made to the house from persons wanting to buy drugs from the defendant. In addition, seven people called at the house asking for the appellant and offering to buy drugs for cash. None of the calls or visits was in the presence or hearing of the defendant. Kearley was charged with possessing drugs with the intention to supply. The evidence of the calls and visits (as observed by the testifying police officers) was tendered in evidence to prove the defendant's intention to supply at the time he was found in possession of the drugs. The majority held that to use this evidence for this purpose would infringe the hearsay rule. Lord Bridge summed up the legal position of implied assertions as follows:

"The speaker was impliedly asserting that he had been supplied by the defendant with drugs in the past. If the speaker had expressly said to the police officer that the defendant had supplied him with drugs in the past, this would clearly have been inadmissible as hearsay. When the only relevance of the words spoken lies in their implied assertion that the defendant is a supplier of drugs, must this equally be excluded as hearsay? This, I believe, is the central question on which this appeal turns. Is a distinction to be drawn for the purposes of the hearsay rule between express and implied assertions? If the words coupled with any associated action of a person not called as a witness are relevant solely as impliedly asserting a relevant fact, may evidence of those words and associated actions be given notwithstanding that an express assertion by that person of the same fact would only have been admissible if he had been called as a witness? Unless we can answer that question in the affirmative, I think we are bound to answer the certified question in the negative ….

Again, as my noble and learned friends, Lord Ackner and Lord Oliver of Aylmerton, point out, the recent decision of your Lordships' House in Reg v Blastland [1986] A.C. 41 clearly affirms the proposition that evidence of words spoken by a person not called as a witness which are said to assert a relevant fact by necessary implication are inadmissible as hearsay just as evidence of an express statement made by a speaker asserting the same fact would be."³⁵

3.9 The Hong Kong Court of Appeal in R v Ng Kin-yee³⁶ "reluctantly" held that the court was bound by the decision of the House of Lords in Kearley.

3.10 The Hong Kong Court of Appeal in HKSAR v Or Suen-hong³⁷ revisited the decisions in Kearley and Ng Kin-yee. In Or Suen-hong, the applicant was charged with "being engaged in bookmaking" by "receiving bets by way of business", contrary to section 7(1)(a) of the Gambling Ordinance (Cap 148). On the night of his arrest, the applicant was seen by the police to have made 59 telephone calls from a flat. He was seen to have made notes after some of the calls. The police then entered the flat and seized a number of documents, some of which were later put before a prosecution expert in bookmaking for his opinion. Upon conviction, the applicant appealed on the ground, inter alia, that the prosecution expert witness was wrongly permitted to rely on the truthfulness of the contents of those documents as: "The contents of a document being hearsay made it inadmissible for the purpose of proving the truth of its contents and that therefore [the expert] ought not to [have] been permitted to form his opinion of [them]."³⁸

3.11 The Court of Appeal rejected this ground of appeal since the betting slips were not being adduced for a hearsay purpose:

"The purpose in this case of the production of the documentary exhibits was to show that the applicant was in possession of the paraphernalia of betting, namely, betting slips. There are other such paraphernalia, namely, the telephones and the coloured pens next to the telephones. Those documentary exhibits contained the format and the jargon of the business, and the purpose of proving their possession, their nature, their format and their jargon, was to show, together with other evidence, that the flat was the venue for the conduct of a business of the kind run by bookmakers. To that end these documents were, in our judgment, admissible evidence and did not breach the prohibition against hearsay evidence."³⁹

3.12 In other words, the evidence of betting slips found in the possession of the appellant was original circumstantial evidence from which it could be inferred that he was receiving bets "by way of a business". The case was thus distinguished from Kearley.

(C) Machine recorded information

3.13 The hearsay rule does not apply to statements containing information recorded by a machine. In R v Spiby, a machine-generated document showing phone calls being made from a certain hotel room in France to the defendant's telephone in England was admitted as evidence to link the defendant to the person staying in the hotel room.⁴⁰ Use of the record for this purpose appeared to be taking the document for its apparent truth that calls were being made from a certain hotel room in France to a certain telephone number in England, thereby infringing the hearsay rule. However, the Court of Appeal held that the hearsay rule was not engaged because the information in the document was recorded by "mechanical means without the intervention of a human mind".⁴¹ Thus, documents containing machine recorded information do not come within the hearsay rule, assuming there is proof that the machine was operating properly during the material time.

3.14 This aspect of the hearsay rule explains why photographs or thermometer readings are admissible as real evidence without infringing the hearsay rule.

Common law exceptions to the hearsay rule

3.15 The early nineteenth century witnessed not only the firm establishment of the hearsay rule in England, but also the gradual creation by judges of the various common law exceptions to the rule. These common law exceptions were created to minimise the effects of a strict application of the rule in circumstances where cogent and reliable evidence would otherwise be excluded.

(A) Admissions and confessions of an accused

3.16 One of the most important exceptions to the hearsay rule is that for admissions and confessions made by an accused person. In a strict sense, the words "admission" and "confession" are slightly different in meaning. However, the law relating to their admissibility is the same.⁴² For the purposes of this paper we will use the term "confession" to include an "admission".

3.17 When, in the course of an investigation into a criminal offence, a suspect has made a statement to anyone that tends to incriminate him, the statement is known as a confession. A confession is usually made in writing or orally by a suspect to a person in authority,⁴³ but it can be made to anyone. The fact that a suspect chooses to remain silent in the face of an allegation put to him is insufficient to constitute a confession. There must be some other factor which shows that the accused accepts the allegation put to him before it can amount to a confession.⁴⁴

3.18 If the prosecution wishes to use the confession for its truth to incriminate the statement maker, the hearsay rule will be engaged. There is, however, a common law exception that allows the statement to be admitted for this purpose. Courts and commentators have identified two competing rationales for this exception. The first rationale is that confessions have an inherent reliability since a person would not normally say things against his own interest unless they were true. The second rationale looks not to the statement's inherent reliability but to the fact that the accused, as a party to the proceedings, cannot complain about the inability to cross-examine his own confession; indeed, the prosecution cannot compel the accused to enter the witness box to give evidence. The first of these rationales is the more commonly adopted.

3.19 It follows from the first rationale that a confession can only be used against the accused who made the confession and not against any of his co-accused. This is because the statement has inherent reliability only insofar as it is made against the interest of the confessor. In principle, those parts of the confession that do not have an incriminating tendency, such as exculpatory assertions, should not be admitted for their truth since the hearsay exception does not extend that far. The courts, however, have recognised the “mixed statement rule”, which allows the exculpatory parts of a mixed statement (ie a statement having both inculpatory and exculpatory parts) to be admitted for their truth as an exception to hearsay. Fairness to the defendant has prompted this development of the rule. Nevertheless, recognizing the lack of inherent reliability in self-serving exculpatory statements, the courts have found it appropriate to instruct lay jurors that the exculpatory parts may carry less weight than the incriminating parts.

3.20 Aside from these hearsay issues, there is another important factor that governs the admissibility of confessions. It has long been established (even before accused persons were competent to testify in their own defence) that, before a confession made to a person in authority can be admitted in evidence, the prosecution must prove beyond reasonable doubt that the confession was made voluntarily. An involuntary confession is one “obtained by fear of prejudice or hope of advantage excited or held out by a person in authority [or] by oppression.”⁴⁵

3.21 Voluntariness is of such great importance that even if the prosecution wishes to use the confession for a non-hearsay purpose (such as to show that the accused made a prior inconsistent statement), that will not be permitted if the prosecution has failed to establish that the confession was voluntarily given. The position is different, however, where a co-accused wishes to cross-examine another co-accused on the latter's confession. It is clear in Hong Kong that if the cross-examination does not infringe the hearsay rule (eg by using the confession as a prior inconsistent statement), the co-accused is entitled to use an involuntary confession for this purpose. The legal position in Hong Kong of allowing a co-accused to use another's involuntary confession for the hearsay purpose of exculpating himself is less clear. In England, it has been held that the English test of voluntariness as set out in the Police and Criminal Evidence Act 1984 must be satisfied before the co-accused can use the confession for this purpose.

3.22 Where a confession has satisfied the test of