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Chapter 4 - Options for
reform
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4.1 As
noted in the preface to this report, the consultation paper issued in November
1998 was prompted by concerns that the existing procedure for determining the
admissibility of confession statements in criminal proceedings was deficient, in
particular because of the time and resources consumed by the voir dire.
The consultation paper set out the arguments for and against change and
concluded by presenting three options for reform of the procedure currently
adopted. We will return to these three options later, but begin by briefly
re-stating the main arguments set out in the consultation paper for and against
reform, referring in the course of that discussion to the views expressed by
those who responded to the consultation paper.
Arguments in favour of
reform
Duplication of
evidence
4.2 The principal argument in favour of finding
alternatives to the voir dire is that to do so would eliminate the
duplication of evidence which the existing system necessitates, with a
consequent saving in court time and costs. Not infrequently the same evidence
which is relevant to the issue of admissibility is also relevant to weight or
credibility and time would be saved by taking the evidence in the presence of
the jury. Under the alternative procedure, for instance, the same issue need
not be tried twice, once before the judge sitting alone, and later in the
jury’s presence. The duplication of evidence which is involved in a
voir dire also provides the witnesses with an opportunity to change their
evidence in the main trial after they have seen how they were cross-examined in
the voir dire, with no opportunity for the jury to test the two versions,
since they will hear only the second.4.3 In
response, it was pointed out by a number of those who responded to the
consultation paper that it was misleading to refer to the same issue being tried
twice as there were in fact two different issues to be dealt with: the
admissibility of the confession statement was a matter for the judge, while the
reliability of the witnesses and of the statement itself were matters for the
jury.4.4 It was further argued that the
administrative advantage of reducing court time and costs should not be achieved
at the expense of jeopardising the accused person’s right to a fair trial.
Under the present voir dire procedure where the issue of voluntariness is
dealt with in the absence of the jury, the accused can testify freely on the
special issue of voluntariness without fear that that evidence would adversely
affect the later determination of his guilt by the jury. The presence of the
jury in the proceedings determining the issue of voluntariness would deprive the
accused of his right to testify freely. In an extreme case, he might choose not
to challenge the admissibility of the confession statement for fear of the
consequences. As JUSTICE
observed,[56] “saving court
time is only a means to an end. It must not be elevated to become an end in
itself.”4.5 One respondent
suggested to us that if the end is cost saving, section 17 of the Costs in
Criminal Cases Ordinance (Cap. 492) can be used to deal with any unnecessary
time wasted on voir dires. Section 17 provides
that:“Where at any time in the course
of criminal proceedings a court or a judge is satisfied that costs have been
incurred in respect of the proceedings by a party to the proceedings as a result
of an unnecessary or improper act or omission by or on behalf of the other party
to the proceedings, the court or the judge may, after hearing all such parties,
order that all or part of the costs so incurred shall be paid to the first
mentioned party to the proceedings by the other party to the proceedings.”
Danger of unfounded
prejudice
4.6 The consultation paper pointed out that where
evidence is excluded after a voir dire, the jury are left not knowing
just what it was, and it may not have been as bad as they imagine. It would
therefore be better to let the jury hear all the evidence, and allow the judge
to direct the jury to disregard any evidence which is subsequently ruled
inadmissible, rather than to run the risk that the jury are influenced by
speculative doubts as to the nature of the evidence which was denied
them.
4.7 The Bar disagrees with this argument
on the basis that once a confession is ruled inadmissible the jury would not be
told of its existence. As the jury are generally empanelled subsequent to the
hearing of the voir dire, they would not be aware of the fact that there
had been a challenge to the admissibility of the
statement.
Illogical to assume jury
cannot disregard confessions ruled inadmissible
4.8 If a preliminary challenge to a confession is
unsuccessful in Hong Kong, it can be repeated before a jury. The jury are not
aware, when it is challenged before them, that the judge has already ruled it to
be admissible. They are directed in terms that if they conclude that
allegations of fabrication of evidence or impropriety are true, or might be
true, they should place no weight upon the confession. They thus see the
confession, and are treated as being capable of disregarding it if they conclude
it is, or might be, the product of malpractice. To that extent, therefore, it
is clear that as matters currently stand juries do see confessions which it may
be incumbent upon them in the course of their deliberations to set at
naught.4.9 The jury would invariably be
directed in terms such as:“The
question is whether you are sure that the accused made a true confession. If
you are not, then ignore the alleged confession. If you are sure that the
accused made it, then you are concerned with the truth of the confession. You
should look at all the circumstances in which it was made. Any pressure on an
accused to make a confession lessens the reliability of any confession he
makes.”4.10 The consultation paper
suggested that it was but a small step for juries to hear evidence relating to
admissibility as well as weight: if they are treated as being capable of
disregarding an improperly obtained confession when they retire at the
conclusion of the trial, they ought equally to be capable of putting out of
their minds a confession statement which comes before them on a hearing as to
admissibility, but is then ruled by the judge to be inadmissible in
law.4.11 The Complaints Against Police Office
(CAPO) is among those who agree with this view. CAPO
considers[57] that as people in Hong
Kong are becoming more knowledgeable and better educated, the jury are, as
arbiters of the credibility of the evidence laid before them, in general capable
of putting out of their minds evidence arising from an inadmissible confession.
4.12 The majority of those who commented on
the consultation paper, however, take an opposing view and believe that juries
would be prejudiced by evidence relevant to a confession that is later ruled
inadmissible by the trial judge. These respondents argue that the present
voir dire procedure ensures that lay jurors are not asked to put out of
their minds the highly prejudicial evidence arising from a confession statement
which is subsequently ruled inadmissible. Instead, the decision is left to a
judge, who is professionally trained to separate inadmissible evidence from
other admissible evidence when he comes to decide on the guilt or otherwise of
an accused. The difficulty for a lay juror to disregard evidence of an
inadmissible confession would be particularly acute where the statement is ruled
inadmissible mainly on technical
grounds.4.13 It was further suggested to us
that even if the jury were able to cast from their minds the inadmissible
evidence, there would always be a lurking suspicion that the jury had considered
matters which were not allowed to form part of the prosecution’s case.
Some respondents saw a double hazard in allowing the jury’s presence in
the voir dire proceedings: the danger that the jury would be prejudiced
by inadmissible evidence and the impossibility of ascertaining whether or not
the jury had been so prejudiced. In addition, the Legal Aid Department referred
to the possibility that the jury might interpret a ruling that a confession
statement is admissible as an indication that one or more prosecution witnesses
are worthier of belief than those called by the defence. That could prove
prejudicial to the accused when the general issue of guilt is tried before the
same jury. 4.14 To the assertion that jurors
should be able to disregard the evidence of an inadmissible confession since
they are already expected (on appropriate direction from the trial judge) to set
aside other irrelevant and inadmissible testimony which does on occasion go
before the jury, barrister Stuart Cotsen
remarks[58]:“[t]here
is a real risk that a jury hearing of an accused’s previous convictions
will not be capable upon direction of disregarding it. The same for evidence
that he was a ‘target’ of the police. These are well established
and there are many more examples. How can it then be argued that a jury is
capable of disregarding a confession and there is no risk of placing a
confession later ruled inadmissible before
it?”
The voir dire usurps the
jury’s function as arbiters of credibility
4.15 The consultation paper pointed out that the
jury, not the judge, decide what credibility and weight to attach to the
evidence led before them at a criminal trial. The voir dire procedure,
however, excludes the jury from assessing the credibility of the evidence led in
relation to the voluntariness of the confession statement. It could be argued
that it runs counter to the general principle of criminal trial procedure to
leave the assessment of the credibility of the witnesses in relation to this one
issue a matter for the judge, rather than the
jury.
4.16 The Bar, among others, responded
that the existing practice of entrusting judges alone to rule on the issue of
admissibility is based on sound policy considerations. The Bar points out that
the admissibility of a confession is a question of law, and not a question of
fact for the jury, and there is therefore nothing to substantiate the claim that
the voir dire procedure has usurped the jury’s function as arbiters
of credibility. Once a confession is “ruled in“ by the judge, the
jury will have the opportunity to assess the credibility of the witnesses. To
that extent, the jury remain the sole arbiters of credibility in respect of a
confession which has been ruled admissible by the
judge.
Possible negative effect
on the jury of exclusion
4.17 Reference was made in the consultation paper
to the Australian Law Reform Commission’s Interim Report on
Evidence which listed a number of considerations suggesting that the jury
need not or should not always be sent out during the hearing of admissibility of
confessions.[59] It was suggested
that the jury’s attitude to the court and the parties might be adversely
affected if the jury is repeatedly excluded from what are apparently important
decisions.4.18 Those who disagreed with this
view pointed out that since the admissibility of a confession statement is
generally dealt with before the commencement of the trial proper, there is
little basis for this concern.
Arguments in favour of
continued use of the voir
dire
Avoids potential
prejudice to the accused
4.19 The main argument in favour of retention of
the existing procedure in jury trials is that it avoids the risk that the jury
may be prejudiced by hearing evidence about a confession which is subsequently
ruled inadmissible by the trial judge. While the professional judge is able to
remove consideration of that inadmissible evidence from his mind when reaching a
verdict, members of the jury may find it harder to do so and inadmissible
evidence which is prejudicial to the accused may colour their judgment. This
view was strongly supported by a significant number of those who responded to
the consultation paper, including both the Law Society and the
Bar.4.20 The Bar referred to the Privy
Council decision in Wong Kam Ming v R to support the assertion that the
judiciary must be accorded some means of excluding confessions obtained by
improper means. Lord Hailsham in Wong Kam Ming held
that:“Any civilised system of
criminal jurisprudence must accord to the judiciary some means of excluding
confessions or admissions obtained by improper methods. This is not only
because of the potential unreliability of each statement, but also, and perhaps
mainly, because in a civilised society it is vital that persons in custody or
charged with offences should not be subjected to ill treatment or improper
pressure in order to extract confessions. It is therefore of very great
importance that the courts should continue to insist that before extra-judicial
statements can be admitted in evidence the prosecution must be made to prove
beyond reasonable doubt that the statement was not obtained in a manner which
should be reprobated and was therefore in the truest sense
voluntary.”[60]4.21 The
Law Society expressed concern at the possibility of prejudice if the jury were
to hear evidence of a confession which was subsequently ruled inadmissible and
argued that the jury should not be expected to engage in the
“gymnastics” required to exclude from their minds allegations which
they have already heard.
Avoids effective
dilution of the right to silence
4.22 The consultation paper pointed out that there
may be a situation where an accused wishes to give evidence on the admissibility
issue but elects to remain silent on the case proper. The jury might form an
adverse view of the accused in such circumstances. That, in turn, may make the
accused reluctant to testify on the limited issue for fear of alienating the
jury. Lord Fraser expressed the concern in R v
Brophy:“It is of the first
importance for the administration of justice that an accused person should feel
completely free to give evidence at the voir dire of any improper methods by
which a confession or admission has been extracted from him, for he can almost
never make an effective challenge of its admissibility without giving evidence
himself. He is thus virtually compelled to give evidence at the voir dire, and
if his evidence were admissible at the substantive trial, the result might be a
significant impairment of his so-called ‘right to silence’ at the
trial.”[61]4.23 The
Law Society, among others, supported this view and argued that the accused
should not give evidence at the voir dire with the residual fear that his
testimony would adversely affect the jury’s impression of him when they
are to arrive at a verdict. Equally, the accused should be able to testify in
the voir dire without being compelled by circumstances to testify in the
main trial for the sole purpose of changing the jury’s adverse impression
of him as a result of his testimony in the voir dire. Those consequences
would effectively impair the accused’s right to silence at
trial.
Options other than the
abolition of the voir dire may achieve the same end
4.24 The consultation paper pointed out that if the
principal objective was to save court time, the videotaping of confessions might
provide a less controversial option. The consultation paper observed that the
practice by the Police and the ICAC of videotaping confessions has reduced
significantly the number of challenges to the admissibility of confessions.
While the heavy resources needed mean that it would be impractical to videotape
all police interviews of suspects, it is probable that this will eventually
occur in relation to serious cases which are likely to be heard in the District
Court or the Court of First Instance of the High
Court.4.25 Even if all interviews were
videotaped, it is clear from the data provided by the Police and ICAC that there
would still be challenges to admissibility, which would (under current practice)
necessitate a voir dire. In relation to the ICAC figures for 1997 quoted
in the consultation paper, for instance, 18.2% of cases going to trial involved
a voir dire. The grounds for challenge ranged from “oppressive
and leading questions” to “defendant was suffering from skin
disease and was refused medication”. In addition, even where the
videotaped interview is scrupulously conducted, there remains scope for
challenge by the accused of conduct before the formal interview began which
would negate the voluntary nature of the taped interview. While the wider use
of videotape would be expected to reduce the number of challenges to the
admissibility of confession statements, that does not justify the abolition of
the voir dire. As the Legal Aid Department
says[62]:“That
from now on all cautioned statements of defendants are to be video recorded is
no justification to abolish the voir dire proceedings altogether. A
defendant’s allegations of malpractice are likely to continue to be made,
in respect of improprieties which may have taken place before the video
recording began.”
The options for
reform
4.26 The consultation paper sought the
community’s views on the following three 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; and
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.
4.27 Written responses were
received to the consultation paper from around 50 individuals and organisations.
The latter included bodies such as the Law Society, the Bar Association, JUSTICE
and the Hong Kong Human Rights Monitor, as well as Government departments
including the Police, Customs and Excise and Legal Aid. In addition, comments
were elicited on the consultation paper from the Legislative Council’s
Panel on Administration of Justice and Legal Services, from members of the Fight
Crime Committee and from participants at a forum organised by the Faculty of Law
of the Hong Kong University. It is fair to say that the majority of those who
responded were against each of the three options for reform proposed. The
general arguments in favour of the status quo have been outlined in the
preceding paragraphs. We now examine each of the consultation paper’s
options in turn in the light of the responses to the consultation paper.
Option A - Granting the
court a discretion to direct that the question of admissibility be dealt with in
the presence of the jury
4.28 The principal concern which prompted our
consideration of the procedure for determining the admissibility of confession
statements was the considerable amount of court time which has to be spent in
dealing with objections to the admissibility of confession statements. The view
was expressed that it is unsatisfactory to have the question of admissibility of
a confession considered separately from its evidential weight and effect,
particularly so in jury trials. Much time is spent by the judge sitting alone
hearing the witnesses in a voir dire to determine admissibility, only to
have the witnesses called all over again before the jury to consider the
question of evidential weight and effect once the statement is admitted. This
is avoided in the magistrates' courts and the District Court by the magistrates
or the judge adopting the “alternative procedure” which enables them
to disregard the statement as proof of guilt should they at the end of the day
determine that voluntariness has not been established.
4.29 The consultation paper suggested that
there is no reason why a similar procedure should not be adopted in jury trials.
Under such a proposal, at the end of the prosecution case, the defendant can, if
he so chooses, elect to testify solely on the issue of admissibility of an
alleged confession, or he can elect to testify generally, or not at all. Should
the judge at any stage of the trial rule that the statement is inadmissible, he
would simply direct the jury to disregard it in their deliberations, and ensure
that any written statements previously adduced in evidence by the prosecution
are withdrawn. 4.30 Option A proposed
that the trial judge should be given a discretion in the interests of justice to
order the adoption of the alternative procedure in a jury trial. Such a
discretion would give a free hand to the trial judge, who would not be bound to
adopt the alternative procedure. If, for example, the prosecution case is weak
without the disputed statements, and the evidence bearing on admissibility falls
within a narrow compass, the judge might well not sanction the alternative
procedure. In support of this option, it was pointed out in the consultation
paper that a system which requires the giving of the same evidence twice in the
course of a criminal trial is neither efficient nor economical, and thus goes
against the interests of justice.4.31 To put
into effect this proposal for change, amendments to the Criminal Procedure
Ordinance (Cap. 221) along the following lines were
suggested:“1. When, in the course of
a trial, objection is taken to the admissibility of evidence sought to be
adduced by the prosecution, the judge may, if he considers it expedient in the
interests of justice so to do, order that the evidence may nevertheless be put
before the court, subject to these
provisions:(i) The accused may elect to
testify, and call witnesses, before the close of the prosecution case, relating
solely to the admissibility of such
evidence.(ii) Where the judge considers
that such evidence is not properly admissible he shall, before the close of the
prosecution case, rule
accordingly.2. Where the judge has
ruled in accordance with paragraph (ii) above, he shall forthwith direct the
jury to disregard such evidence and shall direct that any written material
relating thereto be
withdrawn.”4.32 In favour of this
option, the consultation paper pointed out that providing the trial judge with a
discretion as to whether the question of admissibility should be heard in the
presence of the jury would ensure that the accused is not unfairly prejudiced, a
protection which would be lacking if such hearings automatically proceeded
before the jury. As matters stand, it is up to the defence to decide whether or
not a voir dire will be held, and in practical terms that effectively
means that a voir dire is held in almost every jury case where objection
is raised to the admissibility of a confession. Option A would place the
decision as to whether or not to hold a voir dire in the hands of the
trial judge.4.33 Only one of those who
responded to our consultation paper was in favour of Option A. He considered,
however, that the discretion proposed should only be exercised in exceptional
circumstances, such as where the allegations of impropriety are straightforward
or the only evidence of guilt is the confession
itself.4.34 Understandably, some of the
respondents’ arguments against this option are essentially those stated in
the general arguments presented earlier in this chapter and we do not intend to
repeat details of these arguments here.
Judges’ discretion
undermines uniformity
4.35 The key feature of Option A is that it
provides the trial judge with a discretion to adopt the alternative procedure in
a jury trial. This option was in general treated with suspicion by those who
commented on the consultation paper. The main objection lies in the fear that
the exercise of judicial discretion would undermine uniformity since there are
no clear guidelines as to how the discretion is to be exercised. Allied to this
is the concern that the introduction of this additional element of judicial
discretion may prompt a multiplicity of appeals, particularly in cases where the
trial judge insists on exercising his discretion to allow the issue of
voluntariness to be deliberated before the jury in the face of an objection
raised by the defence.
Unlikely that the jury
can ignore a rejected confession
4.36 As explained earlier in this chapter, the
danger of having the jury present at the voir dire proceedings lies in
the potential prejudice to the accused. Those who reject Option A believe that
the risk is too great that jurors will not be able to put out of their minds the
prejudicial nature of a confession which is ruled inadmissible. It is, they
argue, better to ensure that the accused receives a fair hearing from the jury
on the substantive issue by uniformly excluding the jury from the hearing to
determine the admissibility of the confession
statement.
4.37 It was suggested by one
respondent that a particular difficulty may arise when there is in the same
trial more than one accused with confession statements to contest. In those
circumstances, if the trial judge in the jury’s presence withdraws the
statement of one accused but not that of another, the jury may give undue weight
to the statement admitted, reflecting the fact that that accused’s
assertion that the confession was not voluntary has been rejected.
4.38 Equally unfair to the accused would be
the case where the statement of the co-accused has implicated him in the
commission of the offence. The withdrawal of the statement by the judge could
not remove the fact that the jury had already seen and heard the statement, and
any incriminating evidence it contained.
Inhibition of the
accused’s testimony on the issue of voluntariness
4.39 Some respondents are also concerned that if
the jury were present at the hearing on admissibility, the accused might be
deterred from giving evidence on that issue because of fears that by so doing he
might evoke an adverse reaction from the jury.
Causing injustice to
both parties
4.40 The possible injustice to the accused which
Option A might cause has already been canvassed earlier in this chapter. There
is also a risk of injustice to the prosecution, however. If the judge rejects a
confession statement, this might be taken by the jury as reflecting adversely on
the prosecution witnesses, not only in respect of the question of voluntariness
but also on the substantive issue.
Saving of time and costs
insufficient justification for removing protection provided by voir
dire
4.41 The
cumulative effect of these possible injustices led many of the respondents to
conclude that the saving of court time and costs is insufficient to justify the
adoption of Option A. Ms Corinne Remedios, a barrister, accordingly
observes:[63]
“The potentially grave injustice
to a defendant of a jury relying on an inadmissible confession cannot be
sacrificed in order to achieve a more efficient or economical Court system. The
interests of justice must be weighted in the accused’s
favour.”
Effective dilution of
the right to silence
4.42 A number of respondents were concerned that
the jury, who would be present in the voir dire proceedings as a result of
Option A, might speculate as to why the accused did not give evidence in the
main trial when he had earlier given evidence in the voir dire. The jury might
infer guilt from the accused’s exercise of his right to silence. This
indirectly undermines the accused’s right to silence, as he might feel
compelled under the circumstances to elect to give evidence in the main
trial.
Option B - Making the
determination of the issue of admissibility of confession statements a matter
for the jury in all cases
4.43 This option goes further than Option A and
calls for the abolition of the voir dire in all cases by making the
question of admissibility a matter for the jury to decide. While the majority
of those who responded to the consultation paper were against any of the three
options for change presented in that paper, of those who favoured change, most
opted for Option B.4.44 One argument for
change presented in the consultation paper was that there seemed little
justification for the view that the jury are incapable of putting out from their
minds a confession which they have themselves ruled was not voluntarily given
and is therefore inadmissible, when the current procedure expects them to be
capable of assessing post-voir dire the weight to be given to an
admissible confession on which competing evidence is presented as to the manner
of its taking. The distinction is, it could be argued, unrealistic and
artificial and assumes in the jury a lack of sophistication that has little
validity in today’s Hong Kong. The ICAC
observed[64] that as jurors
in Hong Kong are made up of an average cross-section of the community a properly
directed jury:“... should be more
than capable of making an objective assessment of the voluntariness and fairness
of a confession, without being ‘tainted’ by knowledge of the issues
if the confession were subsequently ruled inadmissible.... We believe that
making the question of admissibility of confession statements a matter for the
jury in all cases would be preferable to allowing courts a discretion to direct
that the question of admissibility be dealt with in the presence of the jury. A
consistently uniform procedure, we feel, would be fairer, almost by
definition.”4.45 The consultation
paper pointed out that Option B had the effect of minimising and possibly
removing the risk of jurors being prejudiced by evidence about a confession
which is subsequently ruled inadmissible by the trial judge. Since the decision
as to the admissibility of a confession is a matter for the jurors, they would
logically readily disregard evidence which they have themselves considered to be
inadmissible, as it must be presumed that they would believe in the correctness
of their own decision. There would therefore be no question of jurors being
prejudiced by evidence relating to a confession which they have themselves ruled
inadmissible. In giving their support to Option B, the Immigration Department
agreed[65] that since juries are
presumed capable of assessing the weight to be accorded to a confession admitted
in evidence, there is little reason for the view that they are incapable of
putting out from their minds evidence of a confession which they have themselves
ruled inadmissible under this option.4.46 The
consultation paper suggested that Option B could be said to provide a more
rational approach to the way in which evidence of an alleged statement by the
accused is handled. Under current procedure, if the accused denies making a
statement at all, that is a matter of fact for the jury to decide. If, however,
the accused concedes that a statement was made but claims that it was forced
from him, the question of whether or not the statement was taken voluntarily is
a matter of law for the judge to decide. The consultation paper pointed out
that it was difficult to discern why the latter circumstances should not be
equally capable of decision by a properly instructed
jury.4.47 One respondent who supported this
argument remarked that it was impracticable to require the jury to draw a
distinction between the issues of admissibility of a confession statement and
the weight to be attached to it. He suggested that the two issues should be
merged, and that all confession statements should be made admissible before the
jury. It would then be a matter for the jury as to what weight should be given
to them (the issues of voluntariness and fairness could be canvassed at that
stage). This would obviate the need for a voir dire
altogether.
Option B a less flexible
option
4.48 Some of those who argued against Option B
pointed out that it was a less flexible alternative than Options A or C, which
would at least allow a residual discretion for the judge to conduct the voir
dire in the absence of the jury. Option B ruled out such a possibility.
The jury would always hear the confession, whatever their conclusion as to
voluntariness might ultimately be.
Prejudice to the
accused
4.49 The possibility of juries blurring the
general issue of truthfulness with the special issue of voluntariness, to the
prejudice of the accused, was raised among others by Mr Harry Macleod, Deputy
Director of Public Prosecutions, who observed
that[66]:
“In hearing a voir dire in which they
are the arbiter of facts, it would not be wholly surprising for the jury to form
a judgment as to the authenticity and truth of a confession, even though those
issues may not necessarily be germane to the issue they have to decide, i.e.
voluntariness. If they were to conclude that the confession was not voluntary,
they may nevertheless have formed the view that the confession was both
authentic and true. This view would be more sharply focused and entrenched than
if they had been mere spectators of a voir dire conducted pursuant to Option A
or C. It is submitted that in such circumstances it would be extremely
difficult for the jury to exclude the confession from their
minds.”
Discourages the accused
from giving evidence on the general issue
4.50 A general concern was expressed by those who
object to Option B that the jury’s ruling on the issue of admissibility
might be taken as an “indication” of the jury’s attitude to
the credibility of the accused and his witnesses. An adverse ruling might
discourage the accused from giving further evidence on the general issue as he
might consider that the jury would disbelieve his evidence by virtue of their
“ruling in” of the confession statement.
Jurors would become
judges of law
4.51 Some respondents expressed concern that
allowing the jury (who are judges of fact) to rule on the special issue of
admissibility (which is a question of law) would usurp the judge’s
function. The issue of admissibility is a complex one, involving legal
considerations which might be asking too much of lay jurors who are neither
professionally qualified nor trained to take up the task.
4.52 It was argued by some that the practical
effect might well be that juries admit all confessions as evidence, a view
summarised by barrister Mr John
Dunn:“The implementation of Option B
would not mean in practice that juries would actually decide upon the
admissibility of confessions. The true effect of Option B would be that all
confessions would be admitted into evidence and juries would then simply decide
how much weight they placed upon
them.”[67]
The accused would always
have a case to answer
4.53 Mr Dunn argued that even if the prosecution
witnesses have all been discredited in cross-examination and there is grave
suspicion that the confession was not voluntarily obtained, the case would
nevertheless continue to its formal conclusion. In the same letter, Mr Dunn
remarked:
“Presumably the jury would
not be called upon at any time to make a formal ‘ruling’ on
admissibility, and in any case they could not do so until the end of the trial
when they had heard all the evidence from both sides. This means that both the
Prosecution and the Defence would have to conduct the entire trial without
knowing whether this crucial piece of evidence (frequently the only piece of
evidence) would be admitted or not. If the Prosecution case is such that it
will inevitably fail without the confession evidence, which is not uncommon,
then if the confession is rejected by the judge after a voir dire, the trial
will end after a successful defence submission at the close of the Prosecution
case. It is submitted that it is clearly in the interests of justice that if
the prosecution cannot establish even a prima facie case, then the trial should
not continue and the defendant should not remain in jeopardy, but should be
discharged. If however the judge does not know whether or not the confession
will be adjudged admissible by the jury, then how can he make a sensible
decision on whether or not in law the Prosecution has made out a prima facie
case? Presumably he must rule, in accordance with R. v Galbraith that
where there is evidence on which the jury could convict if they believe the
witnesses, then he must let the case go
on.”
4.54 If the intention of Option
B is to save court time and costs, it would have failed in its purpose. Even
though the only evidence against the accused is a confession which is ultimately
ruled inadmissible, a full trial must nevertheless be conducted. Under the
present system, if the confession is ruled inadmissible at the conclusion of the
voir dire, the trial need not continue further.
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
4.55 Option C in the consultation paper differed
from the discretion proposed in Option A in that, under the former, as a general
rule a voir dire should be held in the absence of the jury, thus giving
the judge a more limited discretion to proceed by way of the alternative
procedure. However, the judge would be given the authority to exercise his
discretionary power to take into account practical considerations. Option A,
however, would provide the trial judge with a largely unfettered discretion to
direct that the question of admissibility be heard in the presence of the jury.
Under Option C, the determination of the admissibility of evidence would in
general be made by the trial judge in a voir dire in the jury’s
absence, though the judge would have a discretion to direct that the matter be
dealt with in the presence of the jury. If the court at the end of the day
orders that the jury is to be present during the voir dire, evidence
adduced in the voir dire may also be used in the trial, subject to the
exclusionary rules, without the need to repeat it.
4.56 Option C also differs from Option A in
that it proposed that the standard of proof required of the prosecution in
proving the voluntariness of a confession statement should be on the balance of
probabilities, and not the higher criminal standard of proof beyond reasonable
doubt currently adopted in Hong Kong. This standard of proof had been described
as a “variable civil standard” since it allows the standard applied
by the court to take into account the nature and importance of the preliminary
question of fact, in order to deter improper conduct by the law enforcement
agencies. 4.57 Only one of those who
responded to our consultation paper was in favour of the adoption of Option C,
though there were some who favoured other options who also argued that the
standard of proof should be changed. One such was the Immigration Department,
who argued[68] that the change would
not necessarily remove from the accused the greater protection now enshrined in
the present conditions governing the admissibility of confession statements.
They explained that even if the statement is admitted on the basis of the civil
standard, the jury at the end of the day must still be satisfied beyond
reasonable doubt that the accused is guilty, before a conviction can be
returned.4.58 The Hong Kong Democratic
Foundation also gave their support to a change in the standard of proof:
“...particularly bearing in
mind that in voir dires the prosecution is called upon to prove a negative -
that is that the statement has not been improperly procured, that there has not
been force used, nor duress, nor an offer of advantage. And we say this also
conscious of the fact that there is a ‘long-stop’ in that the
prosecutions case as a whole still has to be proved beyond all reasonable
doubt.”4.59 A similar view
was expressed by the Complaints Against Police Office
(CAPO)[69], who commented that the
lowering of the standard of proof to that of civil proceedings would not affect
the fact that the prosecution’s case must stand up to the scrutiny of the
judge, or the judge and jury.
Prejudice to the
accused
4.60 The general consultation responses suggesting
that the jury’s presence in voir dire proceedings would be
prejudicial to the accused apply equally to Option C. For some, those
reservations are exacerbated by the changing of the standard of proof to the
balance of probabilities.
4.61 The arguments
on this point have been fully canvassed earlier in this chapter. Suffice to say
that those opposed to Option C considered that it presented as great a risk of
prejudice to the accused as the other alternatives proposed. The principal
concern is as to the jury’s ability to cast from their minds inadmissible
and prejudicial evidence heard in relation to the voir dire proceedings.
The two standards of
proof would confuse the jury
4.62 Specifically in relation to the proposal to
lower the standard of proof, some respondents doubted if an untrained jury would
be able to discern the different requirements arising from the criminal and
civil standards of proof. The time devoted by judges to explaining the criminal
standard provides an indication of the complexities involved. To burden the
jury in addition with a different standard of proof for one aspect of the
proceedings might prove too taxing on the jury.
Inadequate protection for the
accused4.63 A number of respondents
argued that a lowering of the standard of proof would significantly reduce the
existing protection against abuse by the law enforcement agencies. Under the
present system, the prosecution is required to prove beyond reasonable doubt in
the voir dire that the confession statement was obtained voluntarily,
before the statement can be admitted in evidence before the jury. Should the
standard of proof be lowered, argued some respondents, confession statements
which would otherwise be held inadmissible under the present criminal standard
would be made admissible for the jury who in turn might return a guilty verdict
on an accused who would otherwise be acquitted. Barrister Mr Joseph W.Y. Tse
observed[70]:“This
option can achieve nothing except to remove the safeguards of a defendant in a
trial. If the standard of proof is lowered, it can be foreseen without any
difficulty that almost all challenges to a statement would be unsuccessful.
Judges would have no difficulty in being satisfied of the voluntary nature of
statements. That would be the same as if a defendant had no right to challenge
a statement at all. The law enforcement agencies would in turn be encouraged to
rely more heavily on getting confessions from suspects. The consequences would
be that there would be more and more cases involving a voir dire and practically
all of them would turn out to be a futile exercise of useless
challenges.”
[56]
In a letter to the Secretary to the Commission dated 25 February
1999.[57]
In a letter to the Secretary to the Commission dated 28 February
1999.[58]
In a letter to the Secretary to the Commission dated 25 February
1999.[59]
Evidence Interim Report, (Report No 26, Vol. I), Australian Law Reform
Commission, 1985, at paragraph
1035.[60]
[1980] AC 247, at
261.[61]
[1982] AC 476, at
482.[62]
In a letter to the Secretary to the Commission dated 2 March
1999.[63]
In a letter to the Secretary to the Commission dated 24 February
1999.[64]
In a letter to the Secretary to the Commission dated 11 February
1999.[65]
In a letter to the Secretary to the Commission dated 26 February
1999.[66]
In a note to the Director of Public Prosecutions dated 6 February
1999.[67]
In a letter to the Secretary to the Commission dated 20 February
1999.[68]
In a letter to the Secretary to the Commission dated 26 February
1999.[69]
In a letter to the Secretary to the Commission dated 28 February
1999.[70]
In a letter to the Secretary to the Commission dated 25 February
1999.