The procedure governing the admissibility of confession statements in criminal proceedings - [2000] HKLRC 2 (July 2000) - Chapter 3 - Comparative study of law and practice in other jurisdictions

3.1 The admissibility of confession evidence in the Australian federal courts (and the courts at state level in New South Wales) is now governed by the Evidence Act 1995 (the 1995 Act).^[23] Section 189 of that 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.”

3.2 Section 189 distinguishes two situations. If the “preliminary question” to be determined is whether the evidence in question constitutes an admission, or whether an admission is to be admitted, the jury must not be present (section 189(2)). If the “preliminary question” relates to any other matter, the jury must not be present unless the court so orders (section 189(4)). The factors which the court must take into account in determining whether a jury should be permitted to be present are set out in section 189(5) of the 1995 Act.

3.3 It is clear from section 189 that the jury cannot be present when the admissibility of a confession statement is determined. There is no discretion left with the court to allow a jury to be present during the voir dire on that issue. This contrasts with the Australian Law Reform Commission’s recommendation in 1987 in its Report on Evidence that:

“...it should be a matter for the trial judge whether the jury should be present while such questions are determined but, in general, the jury should be excluded where questions arise as to the admissibility of evidence of admissions or of evidence allegedly obtained illegally or improperly.”^[24]

3.4 Section 142 of the 1995 Act provides that the standard of proof in relation to the preliminary question of the admissibility of confession evidence should be the civil standard of a balance of probabilities. Section 142 provides as follows:

“(1) Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding:

(a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not; or
(b) any other question arising under this Act;

have been proved if it is satisfied that they have been proved on the balance of probabilities.

(2) In determining whether it is so satisfied, the matters that the court must take into account include:

(a) the importance of the evidence in the proceeding; and
(b) the gravity of the matters alleged in relation to the question.”

3.5 This provision is essentially the same as that proposed by the Australian Law Reform Commission in its Evidence report, save for the addition in the Act of section 142(2)(b).^[25] The Commission had recommended that:

“For both civil and criminal trials, where the admissibility of evidence depends upon the proof of facts, the standard of proof of those facts should, unless special provision is elsewhere made, be the civil standard having regard to the importance of the evidence sought to be admitted.”^[26]

3.6 According to the Office of the New South Wales Director of Public Prosecutions, there is some similarity between the “alternative procedure” and the voir dire procedure in judge alone trials. Under section 32 of the Criminal Procedure Act, trials in the District and Supreme Courts can be heard by a judge alone. A judge sitting alone is obliged to conduct a voir dire when issues as to the admissibility of confessions are raised by the defence. However, once the judge has heard the evidence and the objections during the voir dire hearing, it is not the practice to require the parties to call the same evidence again.

Canada

England and Wales

3.8 In England, the admissibility of confession statements is now largely governed by the Police and Criminal Evidence Act 1984 (PACE). Section 76 of PACE provides that:

“(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.

(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained -

(a) by oppression of the person who made it; or
(b) in consequences of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,

the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.

(3) In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above.”

3.9 As in Hong Kong, whenever a confession is challenged by the defence, the prosecution is obliged to prove beyond reasonable doubt that the confession was not obtained in the manner referred to in subsection (2) above. In addition, the court’s power under subsection (3) to require proof on its own motion of the voluntary nature of any confession statement provides protection to the unrepresented defendant, who may be unaware that he has the right to raise objection to the admissibility of the confession.

3.10 It was said in R v Anderson^[28] that there were seldom any circumstances in which a jury could be asked to leave the court in order that statements might be made in their absence, save where this was done at the request or with the consent of the defence. Lord Bridge set out in Ajodha v The State the appropriate procedure for dealing with challenges to the admissibility of a confession statement:^[29]

“In the normal situation which arises in the vast majority of trials where the admissibility of a confession statement is to be raised, prosecuting counsel will not mention the statement in his opening to the jury, and at the appropriate time the judge will conduct a trial on the voir dire to decide on the admissibility of the statement; this will normally be in the absence of the jury, but only at the request or with the consent of the defence.”

As in Hong Kong, the question of whether or not the hearing on admissibility will be held in the presence of the jury is a matter for the defence. As Lord Bridge pointed out in Ajodha, the defence may:

“... for tactical reasons prefer that the evidence bearing on that issue be heard before the jury, with a single cross-examination of the witnesses on both sides, even though this means that the jury hear the impugned statement whether admissible or not.”^[30]

3.11 Our understanding is that counsel for the defence in England are far less ready to call for the issue of admissibility to be dealt with in the absence of the jury than is the case in Hong Kong. The Director of Public Prosecutions of Hong Kong has pointed out^[31] that in England, voir dire proceedings in relation to confession statements are rare. Where the defence challenge the admissibility of a confession statement, they do not generally opt for a voir dire, but instead ventilate the question of admissibility together with the general issue before the jury. The view seems to be that the challenge should be made but once, and before the jury. The judge tells the jury that if they conclude that the confession was obtained by improper means, they should attach no weight to it. Private counsel seem averse to litigating the issue twice, once before the judge alone, and then again before the jury. This may be because they do not want to give prosecution witnesses the opportunity of a dress rehearsal before they give their evidence in front of the jury.

3.12 The voir dire procedure is used both in the Crown Court, where the judge sits with a jury, and in the magistrates’ court, where there is no jury and the court is presided over by a single professional magistrate or three lay magistrates. Bruce and McCoy suggest that the “alternative procedure does operate in proceedings in the magistrates’ courts”.^[32] In the magistrates’ court, the prosecution will adduce the evidence in the normal way, but the defence is then given the opportunity to call evidence on the admissibility issue alone. The prosecution may not go into the contents of the confession if they are not relevant to the question of admissibility. The prosecution case can then continue and the magistrates must give a decision regarding admissibility before or at the end of the prosecution case (R v Liverpool Juvenile Court, exp R).^[33] If the magistrates decide to admit the confession, they do not have to hear the evidence of the circumstances of the confession all over again, unless, of course, it is relevant to the issues of fact.

3.13 Section 78 of PACE provides the court with a discretion to exclude evidence which would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Malaysia

3.14 The law relating to confessions in Malaysia is contained in the Evidence Act 1950.^[34] Section 17(2) of the Act defines a confession as “an admission made at any time by a person accused of an offence, stating or suggesting the inference that he committed that offence”. The Act separates admissions from confessions. There is however a connection between the two. An admission is the genus whereas a confession is a specie of an admission applicable to criminal cases.^[35] The court will only treat a statement as a confession if the accused admits to the elements of the offence (ie the intention to commit the crime, and the commission of the unlawful act).^[36]

3.15 Section 24 of the Evidence Act 1950 provides that:

“A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused, proceeding from a person in authority and sufficient in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him.”

3.16 The “inducement, threat or promise” referred to in section 24 is not restricted to physical harassment. It may take the form of statements by the interrogator.^[37] In Lim Kim Tjok v Public Prosecutor,^[38] it was held that the words “you better tell the truth” vitiated the confession. The words “any advantage or avoid any evil of a temporal nature” in section 24 means that the accused’s confession will remain voluntary if the inducement, threat or promise is spiritual or religious in context.^[39]

3.17 The inducement, threat or promise need not be express but may be implied from the circumstances of the case. In Public Prosecutor v Law Say Seck & Ors,^[40] the court held that the circumstances of the case pointed to a doubt as to the voluntary nature of the confessions made by the accused. The accused had been held in police custody throughout and:

“...it was the investigating officer who took the two accused to the magistrate and it was known and understood throughout not only by the accused but also by the magistrate that the two accused were going back into police custody where in fact they remained for quite some time after the making of the confessions.”^[41]

In the circumstances, there was “reason to apprehend that the influence of the police was still continuing on the mind of the accused” and the confessions could not be admitted.

3.18 Section 25(1) provides that subject to any express provision in written law, no confession made to a police officer below the rank of Inspector shall be proved against a person accused of an offence. Written law includes the common law and any custom or usage having the force of law in the Federation of Malaysia or any part of it.^[42] Under section 26(1), subject to any express provision in written law, no confession made by a person in the custody of a police officer, unless made in the immediate presence of a President of a Sessions Court or Magistrate, shall be proved against that person. Custody in this sense does not necessarily mean a formal arrest. It is sufficient that the accused person cannot go as he wishes.^[43]

3.19 The magistrate is obliged to satisfy himself that the statement the accused is about to make is not influenced by any form of inducement, threat or promise and there must be a real endeavour by the magistrate to find out the object of the confession. In Public Prosecutor v Law Say Seck & Ors^[44] the question raised was the admissibility of statements made by the accused under section 126(1) of the Straits Settlements Criminal Procedure Code to a magistrate. Section 126(1) provided that a police magistrate might record any confession made to him before trial. Section 126(1) of the Code was almost the same as section 24 of the Evidence Act. The court stressed that the person confessing should be left to narrate his story as a whole without any interference. The magistrate’s duty was only to record what the accused said or wished to say. The magistrate did not play the role of an investigating officer. His questions “must be in pursuance of a real endeavour to find out the object of the confession.”^[45]

New Zealand

3.20 In New Zealand, a voir dire in relation to a confession statement takes place when an objection to admissibility is raised by the defence or when the trial judge calls for a voir dire on his own initiative; and the proceedings will be heard in the absence of the jury. Voluntariness remains one of the key tests of admissibility of confession statements in criminal trials. The standard of proof to be applied by the trial judge is the criminal standard of proof beyond reasonable doubt.

3.21 This test is subject to section 20 of the Evidence Act 1908 which provides:

“A confession tendered in evidence in any criminal proceedings shall not be rejected on the ground that a promise or threat or any inducement (not being the exercise of violence or force or other form of compulsion) has been held out to or exercised upon the person confessing, if the judge or other presiding officer is satisfied that the means by which the confession was obtained were not in fact likely to cause an untrue admission of guilt to be made.”

3.22 Thus, in New Zealand, “to be admissible the accused’s confession must be proved by the prosecution, beyond reasonable doubt, to have been voluntarily made or, if it is not voluntary, to be saved by section 20 of the Evidence Act 1908.”^[46]

3.23 The trial judge has a discretion to exclude a confession statement which is found to have been voluntarily made but which was obtained by means which are considered unfair to the defendant.

Scotland

3.24 In Scotland, the test of admissibility of any self-incriminating statement by the accused is one of “fairness”: “[the] simple and intelligible test which has worked well in practice is whether what has taken place has been fair or not.”^[47] What is fair is a question of the particular circumstances of each case, and the rights of the accused must be balanced against the public interest in the administration of justice. Indeed, there has been “a steady move towards liberalisation so that justice must, of course, be done to the criminal, but equally justice must be done to the interest of the public and law and order.”^[48]

3.25 Where unfairness is alleged at a jury trial in the taking of a statement from the accused, the issue may be examined in a trial within a trial from which the jury are excluded. The trial within a trial was introduced in Scotland only in the 1950’s, by the case of Chalmers v HM Advocate.^[49] Since its introduction it has been the subject of considerable criticism, and the circumstances in which it is used have been steadily eroded. Where the trial within a trial procedure is adopted, it follows essentially the same course as in Hong Kong.

3.26 There are significant differences, however, in the basis for the judge’s ruling on admissibility. Crucial to this is the fact that the question of what amounts to unfairness is apparently not a question of law, but one of fact and degree, and as such is properly the preserve of the jury. Renton and Brown observe:

“Whether or not a trial judge can in practice reject statements as inadmissible, and withhold them from the jury, on the basis of his own assessment of the evidence of the circumstances in which they were made, he is not obliged, and indeed it may be in law that he is not entitled, to withhold them unless two requirements are satisfied. The first is that there is no conflict of evidence as to the circumstances in which the statements were obtained, and the second is that it is abundantly clear on undisputed evidence that they were obtained unfairly. While it remains the law that in the end of the day the Crown have to satisfy the jury that the statements were obtained fairly, the defence may be able to have them withheld from the jury only by showing that on any view of the evidence they were indisputably obtained unfairly.”^[50]

3.27 The position described by Renton and Brown reflects two decisions in particular. In Murphy v HM Advocate, Lord Wheatley said:

“In considering whether the presiding judge erred in his decision at the trial within the trial it must be borne in mind (1) that if an issue turns on credibility it is for the jury to decide the issue and not the judge; (2) that if two possible interpretations can properly be put on the situation, one of which falls into the category of fairness and the other into the category of unfairness, the judge should leave the determination of that issue to the jury.”^[51]

3.28 In Balloch v HM Advocate, Lord Wheatley said:

“A judge who has heard the evidence regarding the manner in which a challenged statement was made will normally be justified in withholding the evidence from the jury only if he is satisfied on the undisputed relevant evidence that no reasonable jury could hold that the statement had been voluntarily made and had not been extracted by unfair or improper means.”^[52]

3.29 The consequence of this development of the law is that the use of the trial within a trial has dwindled almost to the point of extinction. Its demise has been assisted by an additional procedural factor: the introduction of a new form of Judicial Examination by the Criminal Justice (Scotland) Act 1980. In proceedings on indictment, the accused must be brought before the court on the first court day after arrest. At this preliminary appearance, or at a subsequent appearance before the accused is “Fully Committed” for trial (which is generally eight days after his first appearance) the prosecutor may question the accused, inter alia, on any alleged extra-judicial confession made by him to or in the hearing of a police officer which is relevant to the charge, whether or not it is a full admission. A copy of the written record of any such admission must previously have been served on the accused and provided to the judge. Strict limits apply to the questions which the prosecutor may ask, and the accused may decline to answer any question put to him. At the subsequent trial:

“his having so declined may be commented upon by the prosecutor, the judge presiding at the trial, or any co-accused, only where and in so far as the accused (or any witness called on his behalf) in evidence avers something which could have been stated appropriately in answer to that question.”^[53]

The practical effect of Judicial Examination is to give the accused an early opportunity to allege unfairness in the taking of any confession statement, while at the same time reducing the likelihood of objections being raised for the first time at trial.

3.30 One further point worth noting in relation to the Scottish approach to the admissibility of confessions is that once the accused has been charged, he may not be questioned further by the police regarding the offence with which he has been charged. There is not, as in Hong Kong, an exception to allow, for instance, questioning where necessary to prevent or minimise harm or loss to some other person or the public: the prohibition in Scotland is absolute, and extends to answers given to questions about information subsequently obtained by the police.

Singapore

3.31 There is no statutory procedure for the conduct of a voir dire in Singapore. Singapore adopts the common law practice of a voir dire where the prosecution will adduce evidence on the issue of admissibility only, followed by the defence’s evidence on this point. At the end of the voir dire, the prosecution may then continue to adduce evidence on the general issue.

3.32 A voir dire is necessary whenever the admissibility of a confession is challenged, provided that the dispute over the admissibility is not confined to a pure point of law, but is one which requires the calling of evidence of the accused person and other witnesses in support of or against the admissibility of the confession. Examples of situations where the admissibility of a confession is challenged include the following: when a statement is challenged on grounds that it was made under threat, inducement, promise (found in the proviso to section 122(5) of the Criminal Procedure Code (Chapter 68)) or oppression; or when a statement is made to a police officer below the rank of Sergeant.

3.33 Trial by jury was abolished in Singapore in 1969. The trial judge will decide on the general issue and on the issue of admissibility, if it arises. However, evidence adduced in the voir dire will not be admissible as evidence in the main trial, unless this is also led in the main trial.

3.34 The alternative procedure is not used in Singapore. According to the Attorney-General’s Chambers of Singapore, there has not been any recent reform in the voir dire procedure, nor any proposed reform of the subject.

South Africa

^[54]

3.35 Under the Criminal Procedure Act 1977 strict admissibility requirements are imposed in respect of confessions. The purpose of this is to prevent a false confession being used as evidence, to protect an accused against improper investigatory methods, and to prevent the violation of the proper administration of justice in accordance with civilised legal norms.

3.36 A confession is admissible if it is proved to have been made freely and voluntarily by the accused who was in his sound and sober senses and without having been unduly influenced (section 217(1) of the Criminal Procedure Act). A confession made to a peace officer (a police official without the rank of Officer) is inadmissible unless it is confirmed and reduced to writing in the presence of a magistrate or a justice of the peace (police officer) (proviso to section 217(1)(a)).

3.37 A second proviso to section 217(1)(b) provides that a confession made in the first instance to a magistrate and reduced to writing by him, or in the second instance confirmed and reduced to writing in his presence, is admissible as evidential material upon the mere production of such document, provided it appears from the document that the name of the person making the statement corresponds to that of the accused. Where an interpreter is used, the document must also bear a certificate by the interpreter to the effect that he so acted.

3.38 It is furthermore presumed, unless the contrary is proved, that the confession was made voluntarily, while the accused was in his sound and sober senses and without any undue influence, provided it appears from the document that the confession has been so made (proviso to section 217(1)(b)).

3.39 The Criminal Procedure Act further distinguishes between the admissibility requirements for admissions and confessions.^[55] Section 219A of the Act provides that an extra-judicial admission by someone with regard to the commission of an offence, if it does not constitute a confession to the offence, is admissible evidence provided it is proved that the admission was made voluntarily. The section also provides that where the admission is made to a magistrate or is confirmed and reduced to writing in his presence, it is by its mere production admissible under the same circumstances and conditions that apply to confessions.

^[23] The Evidence Act 1995 is the same both at the federal level and the state level in New South Wales. See: Commonwealth Consolidated Acts Home Page:
http://www.austlii.edu.au/do2/disp.pl/...580/s189.html?query=titlte(voir%20dire) and
NSW Consolidated Acts Home Page:
http://www.austlii.edu.au/do2/disp.pl/...t/ea199580/s189. html?query=voir%20dire.
^[24] Australian Law Reform Commission, Report on Evidence (Report No 38), 1987, at paragraph 245.
^[25] See clause 138 of the draft Bill at Appendix A of the Report, referred to above, at 197.
^[26] At paragraph 236.
^[27] Evidence Law Reform Committee, New Zealand, Report on Confessions, (February 1987), at page 15.
^[28] [1929] 21 Cr. App. R. 178, at 183.
^[29] [1982] AC 204, at 223.
^[30] Cited above.
^[31] The DPP’s views were set out in his note dated 28 February 1998 to the Secretary to the Law Reform Commission.
^[32] Bruce and McCoy, Criminal Evidence in Hong Kong (Issue 3, 1996), at [905]-[950] of
Division V.
^[33] [1987] 2 All ER 668.
^[34] Act 56 of 1950.
^[35] The Annotated Statutes of Malaysia: Evidence Act 1950 (1996 Issue), notes to [17].
^[36] See Anadagoda v R [1962] MLJ 289; Lemanit v Public Prosecutor [1965] 2 MLJ 26; Zamzuri bin Nazari v Public Prosecutor [1995] 4 CLJ 540.
^[37] The Annotated Statutes of Malaysia, notes to [24].
^[38] [1978] 2 MLJ 94.
^[39] The Annotated Statutes of Malaysia, notes to [24].
^[40] [1971] 1 MLJ 199.
^[41] Cited above, at 201.
^[42] The Annotated Statutes of Malaysia, notes to [25].
^[43] See Eng Sin v Public Prosecutor [1974] 2 MLJ168.
^[44] Cited above, at 199.
^[45] Cited above, at 20I.
^[46] Evidence Law Reform Committee, New Zealand, Report on Confessions, (February 1987), at page 7.
^[47] Walker and Walker, The Law of Evidence in Scotland (1964), at paragraph 46.
^[48] Hartley v HM Advocate 1979 SLT 26, at 28.
^[49] [1954] JC 66.
^[50] Criminal Procedure According to the Law of Scotland, (6th ed.), at 453-454.
^[51] 1975 SLT (Notes) 17, at 18.
^[52] 1977 JC 23, at 28.
^[53] Section 36(8) of the Criminal Procedure (Scotland) Act 1995.
^[54] See generally paragraphs 9.36 to 9.40 of South African Law Commission, Interim report on the simplification of criminal procedure, Project 73, (August 1995) on which this general account of the South African legal position is based.
^[55] "Admission" and "confession" are often treated as having a slightly different meaning. "Confession" is often treated as a full and detailed admission: see Bruce and McCoy, Criminal Evidence in Hong Kong (Issue 7, 1999), at A[1] of Division V.

Hong Kong Law Reform Commission

Chapter 3 - Comparative study of law and practice in other jurisdictions

Australia

Canada

England and Wales

Malaysia

New Zealand

Scotland

Singapore

South Africa