Cheung Kwan-sang and Another v. The Queen

CACC001049/1976

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Coram: Briggs, C.J., Huggins, J.A. and McMullin, J.

Date of Judgment: 12th July 1977.

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JUDGMENT

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Huggins, J.A.:

The Chief Justice has read in draft the judgment which I am about to read and he authorises me to say that he agrees with it.

2. There is in this case only one ground of appeal which calls for our giving detailed reasons. The point arises in this way. This Appellant (who was in fact the 2nd Appellant) was alleged to have made a confession statement to the police. He objected that it had been obtained from him by improper means and in accordance with established practice a trial within the trial was held to determine (a) the admissibility of the statement and also (b) whether there were circumstances requiring the exclusion of the statement even if it was admissible. The learned judge ruled as a matter of law that the statement was inadmissible and therefore did not have to go on to consider the matter of discretion. However, in the course of the proceedings on the issue of admissibility, which were (properly) held in the absence of the jury, this Appellant had elected to give evidence. In his evidence in chief he admitted that he had been present at the scene of the alleged murder. In cross-examination he had been asked whether his confession statement was true. His reply was to the effect that it was true in substantial respects, namely that he had been present at the scene of the alleged murder and that he had chopped the Deceased. When the jury had returned, the Crown adduced on the general issue evidence of what this Appellant had said against his interest in their absence, although counsel for the Crown was careful not to reveal the existence of the extrajudicial confession statement. Objection was taken by counsel for the defence but the objection was overruled. The question is whether that ruling was correct.

3. Of all the subjects which occupy the courts at all levels perhaps that which takes up (and often wastes) the most time, produces the largest number and most vehement of dissents and has led to the greatest inconsistencies is the use of confessions in proving the guilt of accused persons. Whatever the decision of this court it is to be hoped that the present case will be taken further and that an authoritative and final ruling may be given for the guidance of judges and magistrates in Hong Kong.

4. I shall not attempt a complete review of the arguments which have been advanced for and against the exclusion of confessions, but it is necessary to make a brief reference to the historical background and then to review the more important of the cases.

The Exclusion of Involuntary Extrajudicial Confessions

5. It would seem that originally the admissibility of evidence depended upon the competence of the witness rather than upon the nature of the evidence he could give, but it is sufficient for our purposes to observe that admissibility now depends upon relevance. As was said in Kuruma v Reg. 1955 A. C. 197, 203:

"In their Lordships' opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. While this proposition may not have been stated in so many words in any English case there are decisions which support it, and in their Lordships' opinion it is plainly right in principle."

Their Lordships referred to the well known dictum of Crompton J. in Reg. v Leatham (1861) 8 Cox C.C. 498, 501:

"It matters not how you get it; if you steal it even, it would be admissible in evidence."

They then referred to the discretion in a criminal case to disallow evidence which is strictly admissible (the nature of which discretion we shall have to consider) and added at p.205:

"It is right, however, that it should be stated that the rule with regard to the admission of confessions, whether it be regarded as an exception to the general rule or not, is a rule of law which their Lordships are not qualifying in any degree whatsoever. The rule is that a confession can only be admitted if it is voluntary, and therefore one obtained by threats or promises held out by a person in authority is not to be admitted. It is only necessary to refer to Reg. v Thompson (1893) 2 Q.B. 12, where the law was fully reviewed by the Court for Crown Cases Reserved."

This special rule as to confessions was said in Ibrahim v R. 1914 A.C. 599, 609 to have been "long established". In Reg. v Thompson Cave J., reading the judgment of the Court for Crown Cases Reserved, had briefly reviewed the leading cases and deduced that the reason for the rule as to confessions was that which had been given by Pollock, C.B. in Reg. v Baldry (1852) 2 Den. C.C. 430, 442, namely "that it would not be safe to receive a statement made under any influence or fear". The reasons for its being "unsafe" are not stated, but they clearly include the fact that a statement so made is as likely to be untrue as it is to be true, since the prisoner in the circumstances predicated would be more concerned with saying what he believed his questioner wished to hear than with maintaining the truth. It is commonly argued that another reason the court had in mind was the desirability of giving effect to the maxim nemo tenetur seipsum accusare and, while it may be difficult to see any connection between that maxim and the question Which statements is it "safe" to receive?, the fact that the court in Reg. v Baldry went on to refer to the statutory caution and the objection to telling a prisoner that it would be better to speak the truth does support the contention that the court thought the rule was based in part upon that maxim. At one time I tended to believe that the first reason was the only valid reason supporting the rule, a view supported by Reg. v Mazerall (1946) 86 Can. Cr. Cas. 321, 336:

"It would be a strange application of a rule designed to exclude confessions the truth of which is doubtful, to use it to exclude statements that the accused, giving evidence upon this trial, has sworn to be true".

On that view it would be unsound to exclude evidence solely to punish the police or other executive authority for obtaining evidence created as a result of an improper inducement despite the fact that obtaining existing evidence by improper means is not so punished. However, I am now persuaded that it is too late to limit the rule in this way.

6. It is, then, established that even an admittedly true confession must be excluded unless it is proved to have been voluntary, however absurd that may appear. It follows that a defendant is entitled to object to the admission of a confession, even though he knows it to be true, if it was obtained by means of improper inducement.

The Voire Dire

7. It has long been the practice upon a trial by jury to determine the competence of a witness or the admissibility of his evidence, these being matters of law, by holding a "trial within the trial". In other jurisdictions it has been held that this procedure is essential even where the trial is before a judge with assessors or before a judge alone: see Reg. v M'Murairi (1954) 21 E.A.C.A. 262, Bakran v Republic of Kenya (1972) E.A.L.R. 92 and Smith v Reg. (1956-7) 97 C.L.R. 100. In the last-named case the High Court of Australia said at p.118:

"His Honour was placed in a somewhat difficult position in having to sustain the dual functions of judge and jury in a criminal case but he was quite right, in my opinion, if I may say so with respect, in deciding in the first instance on a voire dire as a judge the question whether the confessions were admissible in evidence and subsequently deciding as a jury the weight that should be given to them in the light of the whole of the evidence, because it was only after the question of admissibility had been held against the accused on the voire dire that the accused could be called upon to decide whether to give evidence or not and if he did thereby to subject himself to the risk of cross-examination."

In a trial within a trial the jury plays no active part but as a general rule it ought to be present because the proceedings constitute an integral part of the trial as a whole: R. v Reynolds 1950 1 K.B. 606. Once again an exception is made where the issue is the admissibility of a statement containing admissions. There are two reasons for this. First, it may be necessary to reveal to the judge the terms of the statement and, lest he rules the confession to be inadmissible, it is necessary to prevent the jury from hearing the terms of the statement at that stage. Secondly, the Accused himself is now entitled to give evidence both on the trial within the trial and upon the general issue. Equally he is entitled to give evidence in the trial within the trial but to remain silent upon the general issue. If the jury were to hear his evidence in the trial within a trial and were thereon to form an adverse opinion of his character, that might materially diminish the value of his right to remain silent upon the general issue.

8. The trial within a trial has come to be known as "the voire dire" because of the form of oath which was used upon the enquiry - a form different from that which is used during the rest of the trial:

"That was not an oath as to a matter in issue between the Crown and the prisoner; it was an oath to inform the court truthfully in answer to its questions:" Butterwasser (1947) 32 Cr. App. R. 81, 88.

However, the form of the oath appears to have no practical significance (at least at the present day) in view of the fact already noted that the jury are, as a general rule, present during a trial within a trial and may presumably act upon the evidence then given in so far as it is relevant to the issues they have to try. In Reg. v Amo (1963) P.N.G.L.R. 22 Mann, C.J. said at p.27:

Where there is no jury the fact that the exclusion of the jury from the trial within a trial will prevent jurors from learning the terms of the alleged confession ceases to be material: it is assumed that a judge sitting alone is capable of ignoring, and will ignore, any inadmissible matter which may come to his notice whether accidentally or in the course of a voire dire. Equally, as it seems to me, it must be assumed that he is capable of ignoring, and if the Defendant does not give evidence on the general issue will ignore, the evidence of an accused who elects to give evidence upon the voire dire, however damaging that evidence may be. In Hong Kong, but not in territories where a separate voire dire is de rigeur, the evidence of the prosecution witnesses (so far as it is relevant) may, as we have seen, be taken into consideration. This is the justification for what has been called in Hong Kong "the alternative procedure" under which no separate trial within a trial is held but at the end of the prosecution evidence the defendant is permitted to give evidence confined to the issue of admissibility, the judge rules on the admissibility of the confession and the prosecution then formally closes its case: see Li Kam-ming v Reg. 1967 H.K.L.R. 513.

9. There has been some disagreement whether the judge is concerned upon a voire dire to decide any question as to the authenticity of the alleged confession. Clearly it is for the jury to decide after hearing all the evidence and not for the judge upon the voire dire to reach a final decision whether the statement was made by the accused. Devlin, J. (as he then was) thought in Reg. v Roberts (1953) 37 Cr. App. R.86 that in a case where the voluntariness of the confession was contested it was for the judge to decide whether there was prima facie evidence that the statement was made by the accused.

Evidence Admissible on the Voire Dire

10. Having considered the nature and purpose of the voire dire we must now decide what evidence may properly be called in those proceedings and in particular whether a defendant who elects to give evidence therein may be asked whether the extrajudicial confession the admissibility of which is in issue was true. This matter was raised squarely in Hammond (1941) 28 Cr. App. R.84 and it was held by the Court of Criminal Appeal that the question was a proper one. That is a decision which has been widely criticised and, as we are not bound by it, it is necessary for us to examine the ratio decidendi and the criticisms which have been made. The court said at p.87:

"This appeal is brought on the sole ground that the question which was put by counsel for the prosecution to the appellant in cross-examination was inadmissible. In our view it clearly was not inadmissible. It was a perfectly natural question to put, and was relevant to the issue whether the story which the appellant was then telling of being attacked and ill-used by the police was true or false. It was put by the Lord Chief Justice in the early part of the argument of counsel for the appellant, that it surely must be admissible because it went to the credit of the person who was giving evidence. If a man says, 'I was forced to tell the story, I was made to say this, that and the other', it must be relevant to know whether he was made to tell the truth or whether he was made to say a number of things which were untrue. In other words, in our view, the contents of the statement which he admittedly made and signed were relevant to the question of how he came to make and sign that statement, and, therefore, the questions which were put were properly put."

It is not suggested before us that the truth of the confession was directly relevant to the issue of admissibility, and I think it clearly was not: although questions may be put to the defendant as to the truth of his extrajudicial confession that does not make the truth or falsehood of that confession relevant to the issue of voluntariness: what is relevant - because it goes to the credibility of the defendant - is that the defendant asserts that the extrajudicial confession is true or false. Otherwise all the evidence relevant to the general issue would be admissible upon the voire dire. As upon all matters concerned solely with credibility, answers given in cross-examination must be accepted and evidence in rebuttal is not admissible. The court in Hammond thought the answer given by the accused went to his credit. That was the view taken in Reg. v Plante 1958 O.W.N. 80 and by the majority of the Supreme Court of Canada in DeClercq v Reg. (1969) 70 D.L.R. (2d) 530, and it has no doubt been applied since then in numerous cases in various jurisdictions, including Hong Kong. DeClercq was one of those cases tried at first instance by a judge without a jury and much of what was said in the judgments reflects that fact. In that case Hall, J., treated what was said in Hammond about the confession's being relevant to credibility as an obiter dictum, while Spence, J. thought that the answer of the accused had no relevance to his credibility and for that reason no relevance, direct or indirect, to the issue of voluntariness. The latter's view (at p.551) was that, at the stage when the judge is called upon to rule whether he will admit the confession,

"If the accused were to answer the question .... in the negative, then there would be no basis upon which the trial Judge could come to the conclusion that his answer was false and that therefore his credibility in his testimony to the effect that the statement was not voluntary might be untrue until the trial had been completed".

Admittedly a jury is in a better position to decide the credibility of the accused at the end of the trial than would a judge be at an earlier stage, but that applies also to the credibility of the witnesses for the prosecution who have given evidence on the issue of admissibility. It is no reason for saying that the judge should not assess the accused's credibility upon the material then available to him. (Having ruled on the admissibility of a confession a judge may later, after hearing further evidence on the general issue, decide that his decision was wrong and then he may either discharge the jury or direct them to ignore the confession if he thinks that such a direction will suffice). With respect I think Martland, J. was nearer the mark when he said at p.537:

"... the admitted truth or the alleged falsity of the statement could be a relevant factor in deciding whether or not he would accept the evidence of the accused regarding such pressure".

In the same case Pigeon, J. said at p.554 that, upon the accused's admitting that his confession was true,

"the trial Judge, the Chief Justice himself, ruled the confession admissible, saying that it would be a 'public scandal' if, after a full confession upon oath in open Court, the accused should thereafter be acquitted. Who will say that this man should properly have been disbelieved when saying that the confession had been extorted because he ought to be believed when confessing his crimes? Yet this is what must be the reasoning on the issue of credibility if one is going to contend that the principle of not allowing involuntary confessions in evidence remains unimpaired".

I shall endeavour to show that that is not the reasoning. When we come to the commentators we find that R.S.T. Chorley at (1942) 5 Mod. L.R. 236, 237 said:

"It is not very easy to follow the argument about the question going to the man's credit. If he had answered 'No,' the inquiry would not have been further The fact that he answered 'Yes' when his answer practically meant a death sentence would persuade most people that he was so truthful a person that his account of what occurred during the interrogation was to be preferred to that of the police. But if this were so, then the confession itself was inadmissible."

That, surely, would depend upon the other evidence. Heydon on Evidence 181 says of Hammond:

"This is a strange case. The accused's answer was as a matter of fact extraordinary and unexpected. The Court's reasoning that the truth of the confession is relevant to the question whether the accused can be believed in saying it was extracted by violence is odd. If the confession is true this presumably shows that the accused tends to tell the truth, which suggests that he is telling the truth in saying the police were violent. Yet the Court apparently thinks it tends to show him a liar on the basis that confessed criminals are likely to be liars, but if so his confession should be false."

With respect I do not think that is what the court thought, but unfortunately neither the court in Hammond nor the majority in DeClercq discussed in detail how the answer of the accused might affect his credibility: they seem to have thought it was self-evident. For my part I cannot treat what Humphreys, J. said as obiter and it seems to me that what the court had in mind was that, if an accused was prepared to confess on oath to a crime on the voire dire, he might be so reliable a witness that his allegations of inducement ought to be believed, whilst, if he was prepared to confess (as he says) untruthfully to a crime when the inducement was comparatively slight, he might the more readily be prepared to tell lies against the police to escape the consequences of his having made an extrajudicial confession which was in fact true. While that, no doubt, may involve to some extent judging a witness's credibility upon his physical and moral courage, it cannot be said that that is wrong. Heydon also suggests that questions as to truth on the voire dire "operate as an incitement to perjury". Neasey in his article at (1960) A.L.J. 110 accepts the correctness of the decision in Hammond and says:

However, at p.111 he points out:

"If the accused's confession is in fact true, he faces the unfair alternative of committing perjury or of confessing to the crime in open court, with all the consequences which may follow, and thus the decision is an incitement to perjury."

It may be a quibble to question the use of the word "incitement" but there is certainly some force in the argument. Yet immediately one starts talking about "unfairness" one is forced to the conclusion that the argument is shifting from admissibility to a discretion to exclude admissible evidence. Since it has been a failure to keep those two aspects of the matter entirely separate and distinct which has led to all the confusion in the past, it is important that we should endeavour not by the same error to make confusion worse confounded. It is, I think, generally accepted that the rule under which involuntary confessions were excluded was the outcome of the repeated exercise of a discretion to exclude.

11. Mr. Marash contends that "there is no general rule against self incrimination" and that the only "fundamental right" is the right not to be questioned extrajudicially after one has been charged with an offence and to remain silent in court during one's trial: Cheng Chung-yat v Reg. 1970 H.K.L.R. 269, 272. Therefore, he says, a defendant who elects to give evidence on the voire dire does so "voluntarily". Nowhere can I find any statement that there is a rule of law which renders self incriminating evidence inadmissible: the only rule is that identified in Reg. v Thompson (supra). Indeed, s.54(1)(e) of the Criminal Procedure Ordinance would appear to negative the existence of any other rule.

12. Although at one time I shared McMullin, J. 's doubts as to the correctness of the decisions in Hammond, Reg. v Plante and Reg. v DeClercq (confirmed in Reg. v Van Dongen (1975) 26 Can. Cr. Cas. (2d) 22), I am now persuaded that they were right and I think the questions as to the truth of the extrajudicial confession were relevant and permissible.

The Discretion to Exclude Evidence on the Voire Dire

13. Cartwright, C.J.C., in Reg. v DeClercq, although one of the majority, was of opinion that the question there put, although legally permissible, should not have been allowed by the judge, whilst others have said that the defendant in such circumstances should be warned that he is not obliged to answer. Section 54(1)(e) of the Criminal Procedure Ordinance makes the second of these arguments untenable in Hong Kong. The first brings us to a consideration of the nature of the discretion, recognised in Kuruma v Reg. (supra), to exclude admissible evidence. Cartwright, C.J.C., himself indicated that the discretion to exclude was that discussed in Noor Mohamed v R. 1949 A.C. 182. In addition to Noor Mohamed v R. and Kuruma v Reg., both of which are binding on this court, Mr. Marash has referred us to other cases, not so much to ascertain the principle as to see how the principle has been applied. The principle is clear: in a criminal case the court has a discretion to exclude admissible evidence where the probative value of that evidence is outweighed by the prejudice which would result from its admission. In Li Ming-kwan v Reg. 1973 H.K.L.R. 275 the Full Court explained what "prejudice" means in this context. There have been dicta which might suggest that there is a wider discretion, extending to the exclusion of any evidence which the judge thinks is "unfair". I am not persuaded that any such discretion exists and I agree with those who point to the dangers of allowing so uncertain a basis for the exclusion of legally admissible evidence: Lord Chancellors are not the only judges who do not necessarily all wear the same size of shoe. I refer only to the strong statements of Davitt, P. and McLoughlin, J. in The People and O'Brien v McGrath (1965) 99 Ir. L.T.R. 59 and of Martland, J. in Reg. v Wray (1970) 4 Can. Cr. Cas. 1. Martland, J., with whom the majority agreed, said at p.19:

"In my opinion the recognition of a discretion to exclude admissible evidence, beyond the limited scope recognized in the Noor Mohamed case, is not warranted by authority, and would be undesirable. The admission of relevant admissible evidence of probative value should not be prevented, except within the very limited sphere recognized in that case. My view is that the trial Judge's discretion does not extend beyond those limits ....".

In my view there is already enough scope for differences of opinion in the application of the rule in Noor Mohamed v R., as the reported cases show, and appellate courts have repeatedly declined to substitute their own discretion for that of the trial judge. Cartwright, C.J.C. in Reg. v DeClercq cited from the judgment in Noor Mohamed v R. and concluded that, although in his view the judge should have exercised his discretion by excluding the answer, the Supreme Court of Canada did not have jurisdiction to interfere with a mistaken exercise of a discretion. He did not say what was the prejudice which he thought arose, but it seems clear that he must have had in mind prejudice arising from the self incriminating nature of the answer. It has been said that such an answer can be "of no real help" in deciding the issue of admissibility, but in my view it is either relevant to credibility or it is not and, if it is, it is of real help. Neasey (op. cit.) suggests that the exercise of judicial authority to discourage the asking on the voire dire of questions relating to the truth or otherwise of an extrajudicial confession "would in the great majority of cases accord with justice and principle" and he infers from some of the dicta in Hammond "that the court thought that in ordinary circumstances it would be better not to ask the question". I think the most that ought to be inferred from that source is that it would be wrong for counsel to ask questions on the voire dire about the truth of an extrajudicial confession for the purpose of obtaining a confession which could be used later, and with that I would agree, but Hammond itself is sufficient authority for holding that it is not always oppressive or unfair to ask such questions for the purpose of testing the credibility of the defendant as a witness. It is true that in that case the court decided that the answer on the voire dire was admissible and nothing was expressly said about the judge's discretion, but, as it seems to me, bearing in mind that there would be a further discretion to exclude evidence of the answer if the prosecution sought to lead such evidence subsequently, it could hardly be said that at the stage of the voire dire any prejudice was substantial. That being so, however slight the probative value of the answer the prejudice would not necessarily outweigh it and the answer could properly be admitted in the exercise of the judge's discretion.

14. Whilst this may be the weakest link in the Crown's case, nevertheless of the conflicting principles those which leave intact the discretion of the judge to decide each case upon its merits and which do not compel him to exercise his discretion in favour of exclusion of the question and answer appear to me the weightier. I see no sufficient ground for holding that the judge in the court below was not entitled to exercise his discretion as he did.

Admissibility of Judicial Confession on the General Issue

15. We come next to the question whether it was permissible to lead evidence before the jury upon the general issue of the answers given on the voire dire. No one could reasonably argue that a confession to the offence was not relevant to the general issue. In the absence of any rule that self incriminating evidence is inadmissible does there remain any other basis for contending that this evidence should have been excluded as a matter of law? Mr. Marash argues with considerable force that in the nature of things the rule excluding "involuntary" confessions can apply only to extrajudicial confessions. Is it to be said that a confessions made in the course of judicial proceedings is "improperly obtained" and "involuntary" because the person who makes it is being overborne in the presence of a judge? The majority of the Supreme Court of Canada in Reg. v Plante and Reg. v DeClercq obviously did not think so. Basically the Crown's argument in favour of permitting evidence to be introduced of the judicial confession is that to rule otherwise would produce gross injustice and absurdity, and that argument could be no less valid because the extrajudicial statement was not admissible. The contrary argument is based upon the so-called "right to silence" and the contention that it is unfair in effect to compel a defendant to go into the witness-box in order to protect himself against the admission of evidence which he says should not be admitted and then to make use of his evidence for another purpose. It can be said that if his objection to the admission of the extrajudicial confession is overruled that shows that the substance of his evidence on the voire dire was untrue and he has only himself to blame if he has gone into the witness-box to commit perjury, whilst where his evidence has been believed or has raised a reasonable doubt he can fairly be regarded as having been "forced" to place himself in jeopardy of being asked the possibly fatal question, "Was your extrajudicial confession true?" I will consider whether there is a sufficient basis for excluding evidence of the judicial confession as inadmissible where the extradjudicial confession is held to be inadmissible when I come to review the judgment in Reg. v Van Dongen.

16. It may be noticed that there seems to be no general rule against cross-examination of a witness on the general issue concerning inconsistent statements made by him on the voire dire. Thus in Reg. v Darwin (1973) 13 Can. Cr. Cas. (2d) 432 it was held that counsel for the defence was entitled to cross-examine before the jury a witness for the prosecution who had given evidence on the voire dire. In Reg. v Gray 1965 Q.R. 373 the Criminal Court in Brisbane held that even a defendant may be cross-examined about an inconsistent statement made by him on the voire dire and that such inconsistent statement could be proved if he did not admit it.

17. Several of the cases cited to us are of, at most, limited assistance because they come from jurisdictions where a voire dire is necessary even though the trial is before a judge sitting without a jury. What was there in issue was whether evidence, either for the prosecution or by the defendant, given on the voire dire was ipso facto available to the judge for the purposes of the general issue. Of necessity it was held that the evidence was not available. Thus in Reg. v Gauthier (1975) 27 Can. Cr. Cas. (2d) 14 the Supreme Court of Canada held (1) that even on a trial by judge alone there must be a voire dire to determine admissibility; (2) that that applies even where the accused denies making the statement; and (3) that the evidence on the voire dire cannot be used on the general issue unless both parties consent. The minority thought the Crown had consented: the majority found no evidence of such consent but that what had been consented to was the use of the voire dire evidence in one case to be used as voire dire evidence in two other cases. In Chitambala v Reg. 1961 R. & N. 166 the Federal Supreme Court held that evidence by an accused on the voire dire was not evidence on the general issue and, in particular, that it was not evidence against a co-accused, who had had no opportunity to cross-examine in the voire dire proceedings: where the trial is before a judge alone the evidence on the voire dire should be treated in the same way as it would if there were a jury and should be disregarded on the issue of guilt. In spite of the distinction which we have already noticed between that case and the present the following observation of the Federal Supreme Court is not without relevance to the point we have to decide:

"In any criminal trial the accused has the right to elect not to give evidence at the conclusion of the Crown case. To regard evidence given by him on the question of admissibility as evidence in the trial itself would mean either that he must be deprived of that right if he wishes properly to contest the admissibility of a statement or that, to preserve that right, he must abandon another right in a fair trial, the right to prevent inadmissible statements being led against him."

The abandonment of the right to prevent inadmissible statements being led against him" may not be so direct where it is not the evidence of the defendant itself which is in question but evidence of an admission made in the course of that evidence, yet there can be no doubt that where the extrajudicial confession is true a defendant would be handicapped in contesting the admissibility of that statement.

18. That consideration did not outweigh the other factors in the minds of the judges in DeClercq v Reg. (supra). I shall not repeat the circumstances of that case, which have already been set out in this judgment. It is apparent from the judgments that all the judges thought the answer given by the defendant on the voire dire, once it was admitted, would necessarily be available on the general issue. When Cartwright, C.J.C. said that "grave prejudice" would result, he presumably had in mind that evidence might be led of the new confession and he thought the judge should, in the exercise of his discretion, not have allowed the question. For our purposes it matters not that this dictum was obiter (since the Supreme Court of Canada had no jurisdiction to interfere on a pure matter of discretion) - and I emphasise that we are still considering admissibility and not a discretion to exclude. With respect to Pigeon, J. I think he must have misunderstood the decision in Reg. v Monks (1960) 34 A.L.J. 111: the learned Chief Justice did not there say that it would be a public scandal if the extrajudicial confession were ruled to be inadmissible but that it would be a public scandal if the accused were acquitted and he accordingly permitted evidence of the judicial confession. It is not to be inferred that the Chief Justice disbelieved the accused as to the alleged police brutality because he had confessed to the crime. Reg. v Monks is therefore directly in point both on the issue which we are now considering and on the further issue of discretion.

19. We have seen that in Reg. v Van Dongen the Supreme Court of Canada confirmed the view of the majority in Reg. v DeClercq that it was permissible on the voire dire to ask an accused whether his extrajudicial confession was true. Robertson, J.A. then held (1) that the voire dire was "part of the trial", in the sense that evidence given thereon need not be called a second time if the party consented to its being so used (Reg. v Gauthier), so that (2) the evidence of both prosecution witnesses and of the defendant on the voire dire might, where consent had been given, be referred to on the general issue; but that, (3) because counsel for the Crown had indicated his intention not to use the answer of the defendant on the voire dire to the question whether his extrajudicial confession was true as evidence against the accused on the general issue, it would be unfair to have regard to the answer in deciding the guilt of the accused. The basis of his decision appears to have been that the objection to the question would have been pressed if counsel for the Crown had not so indicated. It is, however, a little difficult to see how such objection could ever have succeeded if Robertson, J.A. 's view of the law at "(2)" is correct. Where consent has not been given, an admission by the defendant on the voire dire would not be immediately available on the general issue, but he seems to have thought that evidence of it could be given, for he said at p.49:

"The relevance of an answer to a question ... cannot be limited by the purpose of counsel who called the witness, or the purpose of counsel who asked the question, or the purpose of the witness in answering the question."

and he referred to the "retaking" of evidence given on the voire dire in Canada by the reading of the shorthand note. I am not sure whether he was there confining himself to the "retaking" of evidence of the defendant only. Under s.60 of our Criminal Procedure Ordinance, to which he referred and which has now been repealed as being unnecessary, the retaking of evidence of course involved the recalling of the witness to give the evidence himself a second time and s.60 had no relevance to calling another witness to prove a confession by the defendant on the voire dire. Branca, J.A. concluded his judgment by saying at p.34:

"In my judgment .... the learned judge erred in considering the statement made by the appellant on the voire dire after he had ruled the same to be inadmissible",

but what the trial judge had ruled to be inadmissible was not "the same" (i.e. the judicial confession) but the extrajudicial confession. The editor of the report, no doubt rightly, assumes that the learned judge was expressing the view that the admissibility of the judicial confession, and that was undoubtedly the reasoning upon which Carrothers, J.A. founded his judgment. This would, therefore, appear to be the ratio decidendi of the majority. Carrothers, J.A. gave as the connecting link the self incriminating nature of the evidence, but, as I have previously said, I can find no authority for a rule that a self incriminating statement other than one which is involuntary is inadmissible as a matter of law. In my view to hold that such a rule exists in Hong Kong would be unwarranted judicial legislation. What the law does not allow is improper pressure. Even where an extrajudicial confession was involuntary the defendant is not "compelled" to give evidence: s.10 of the Evidence Ordinance. Neasey, writing in 1960 (op. cit. at p.111), appeared to accept that once a question as to the truth of an extrajudicial statement had been asked and answered on the voire dire "there is nothing to prevent the Crown from leading evidence before the jury of the further confession made on the voire dire" and he referred to Reg. v Monks. Since then the point has been considered by the Supreme Court of South Australia in Reg. v Wright 1969 S.A.S.R. 256. All three judges there held that the Crown had the right to lead as part of its case evidence of admissions, relevant to the issue, made by the accused on oath during the cross-examination on the voire dire. They further agreed that this right was subject to the discretion of the trial judge to disallow the evidence but (as we shall see) they were not agreed as to the proper approach to the exercise of that discretion.

20. Stewart v R. (1922) 29 C.L.R. 234 and the English case of Reg. v McGregor 1967 3 W.L.R. 274 give some support for the view that there is no fundamental objection to leading evidence of admissions made by the defendant in the course of defending himself against the charge before the court. Those were cases where, upon a trial at which the defendant gave evidence in his own defence, the jury disagreed. Upon his retrial the prosecution led evidence of what the defendant had said at the first trial and it was held that that was certainly not "unfair in the general circumstances of the administration of justice". I think Li Kim-hung v Reg. 1969 H.K.L.R. 84, Reg. v Gauthier (supra) and Ng Chan-kwan v Reg. 1974 H.K.L.R. 319 are all distinguishable because the trials were before a judge or magistrate sitting alone and no further evidence of the confession was led. It is true that the learned judge in the court below here appears to have regarded Reg. v Gauthier as supporting the view that he was taking, but he relied principally upon Reg. v Wright. It is also true that in Ng Chan-kwan v Reg. a Full Court (of which I must confess to having been a member) said at p.328:

"... The essence of the matter is that what the accused says on the voire dire may not be used as substantive evidence against him or his co-accused. Thus if on the voire dire the accused admits the truth of his extrajudicial statement a witness may not be called to acquaint the jury of that admission as part of the prosecution case. If the trial is by judge alone similarly the judge must not treat the admission as part of the prosecution case. (That is what appears to have been done in Chitambala v Reg.) In this respect evidence on the voire dire is distinguishable from an extrajudicial confession and the basis for the distinction lies in the accused's right to remain silent upon the trial of the general issue even though he has elected to give evidence on the voire dire. The only way in which evidence of an admission made by the accused on the voire dire may be adduced in evidence is by way of rebuttal if he gives evidence on the general issue and if that evidence is inconsistent with what he has said on the voire dire."

That was obiter and in any event is not binding on the Court of Appeal.

21. In my view, as now advised, there was no rule of law which compelled the learned Commissioner to hold that evidence of the confession made by the Defendant on the voire dire could not be adduced before the jury.

Exclusion of Evidence of the Judicial Confession as a Matter of Discretion

22. I have already discussed the nature of the discretion to exclude admissible evidence and concluded that the only basis for exclusion is that stated in Noor Mohamed v R. In the course of a masterly analysis of the cases, and exposition of the law based thereon, Martland, J. in Reg. v Wray (supra) said at p.17:

"It is only the allowance of evidence gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the court is trifling, which can be said to operate unfairly".

He went on to say that if the probative value of the evidence was unimpeachable there was no discretion to exclude evidence even though obtained unfairly. In Reg. v Monks (supra) Morris, C.J. must have been satisfied that there was no manifest prejudice which required him to exclude evidence of the admission made on the voire dire. In Reg. v Wright (supra) the matter did not arise for decision because the reference to the Supreme Court was made before the conclusion of the trial at first instance. Zelling, A.J. expressed no opinion as to how the trial judge should exercise his discretion. Bray, C.J. said that he thought that in the circumstances of the case the discretion should be exercised to exclude the evidence, whereas Chamberlain, J. could see in the circumstances no justification for such an exercise of the discretion. In my judgment the evidence of a shorthand writer concerning a confession made on oath in relation to the offence with which a defendant is charged is evidence of unimpeachable probative value and I would doubt the propriety of a judge's excluding such evidence in the exercise of his discretion. Mr. Commissioner Garcia did not exclude the evidence here and I see no ground upon which we could interfere with the exercise of his discretion in this matter.

23. For these reasons I would dismiss the application.

12th July 1977.

Representation:

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Coram: Briggs, C.J., Huggins, J.A. and McMullin, J.

Date of Judgment: 12 July 1977

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JUDGMENT

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McMullin, J.

The two appellants were amongst six persons charged upon an indictment containing three counts: one of murder and two of wounding with intent to do grievous bodily harm. These charges arose out of a single incident which occurred on the 28th of December 1975 at an establishment known as "massage parlour" at No. 689, Nathan Road. It was the case for the Crown that the appellants and their companions launched what amounts to a revenge attack upon inmates of that message parlour the background to that affair involving violence done to one of their number on a previous occasion by persons who were suspected of being at the massage parlour on the abrasion of this attack. It was common ground that in the course of the assault one man was killed and two others received serious injuries inflicted with knives. Directed verdicts of not guilty were entered by the jury following upon submissions of no case in respect of three of the accused. Another of the accused, the original second accused, CHEUNG Fai-hung, was found not guilty upon all three charges by unanimous verdict of the jury. The present appellants were each found guilty on all three charges by unanimous verdicts. A number of points were taken upon the appeal in respect of both appellants but in the upshot we found that there was substance only in one of the grounds argued before us. We found no substance in any of the matters urged on behalf of the first appellant but the point which occasioned concerned and in respect of which we reserved judgment arises in the case only of the second appellant. It is the last of the grounds set forth in his memorandum for appeal and is in the following terms:

2. It is conceded that the only evidence against the second appellant (fifth defendant at the trial) consisted of admissions made by him to questions put to him in cross-examination by counsel for the Crown on the voir dire and that these were in fact repetitions of parts of a statement made by him to the police which was then under consideration. He claimed that the statement had been procured by various kinds of inducement including a mild degree of physical force. The statement itself was excluded by the Commissioner on the basis that it had not been proved to be voluntary. When the jury returned however he permitted the prosecution to call the court reporter to put in the record of the questions and answers made by the defendant on the voir dire. The prosecution then relied upon this as substantive evidence to show that the defendant had taken part in the attack upon occupants of the massage parlour. Two questions of the utmost importance arise in relation to this unusual procedure. They are as follows : (1) Is it permissible on the trial of the separate issue to ask a defendant who is giving evidence on his own behalf on the voir dire whether the contents of a disputed statement are true? (2) If this is permissible is it permissible for the prosecution to adduce evidence of the answer to that question on the general issue before the jury? In considering the principles involved it is advisable for simplicity to treat of the case where the excluded statement amounts to a full confession to the crime charged and where the subsequent admission on the voir dire amounts to a simple affirmation of the truth of that confession.

3. The root of the problem raised by the first question is to be found in R. v. Hammond⁽¹⁾ a case in which the defendant upon a voir dire made an admission of this straightforward type in answer to questions concerning a statement to the police which itself amounted to a full confession. The statement was admitted in evidence and the defendant was convicted. On appeal Humphreys, J. giving the judgment of the court said that the question put to the defendant as to the truth or falsity of the statement was admissible because it went to the credit of the defendant. He stressed however that the trial judge had not formed his opinion as to the admissibility of the statement by relying on the defendant's admission that it was true. This is a vital point for, as it seems to me, in none of the Canadian and Australian decisions to which we have been referred by counsel have any of the judges who resorted to Hammond's Case⁽¹⁾ as authority for the relevance of this question on the voir dire discussed the nature of its relevance to the issue of credibility - the only issue which, by the consensus of most of these cases, affords a ground for the putting of the question. Humphreys, J. in Hammond⁽¹⁾ itself gives no reason for his emphatic opinion. It is clear that the truth or falsehood of the statement has no direct relevance to the main issue on the voir dire - the issue of voluntariness. But for my part after long consideration I cannot see that the answer to this question has any material relevance even to the issue of credibility. Where the answer to the question "Is this confession the truth?" is "No" the inquiry is no further advanced. The credibility of the defendant in relation to the alleged improprieties can scarcely be enhanced or impaired by an answer which favours his own interests in opposing the admission of the statement. On its own, demeanour apart, it is neutral. It is precisely the answer one would expect - true or false - given the reason for the opposition to the statement, viz. the desire of the defendant to save himself from condemnation. If the answer is: "Yes, it is the truth" it is relevantly probative only if it enhances the credibility of the defendant on the question of voluntariness. It can only do that upon the basis of a presumption in favour of the truthfulness of statements made against a party's own interest. At that stage the court is not concerned - indeed not entitled - to form a concluded opinion on the truth of the statement. If, thereafter, the statement is admitted then the probative effect of the answer has clearly been negligible on the issue of credibility. On the other hand if the statement is excluded this may not necessarily be because of the high probative value of the answer in relation to the defendant's credibility. In most cases, one would hope, it would primarily be because the evidence led by the prosecution on the issue had proved unsatisfactory and because the external circumstances generally tended to support the defendant. In other words while there may technically be a probative element in an affirmative answer to the question that element rests upon the possible truth of the answer and that is something which strictly speaking can only be established either by a plea of guilty or else by a determination of the issue of guilt upon the trial.

4. I adhere therefore to the strongly reasoned judgments of the three dissenting judges in DeClercq v. The Queen⁽²⁾ and in particular to that passage in the judgment of Hall, J. which appears on pages 547 and 548 which amounts to a cogent summary of the reasons for not permitting questions as to the truth of a challenged statement to be put to the defendant on the voir dire:

If an accused cannot testify on the voir dire without being liable to be asked questions bearing directly on his guilt or innocence, he is put in a situation where he cannot do so without in effect being deprived from the benefit of the rule against compulsory self-incrimination."

5. The majority judgment of the court in DeCercq⁽²⁾ was delivered by Martland, J. It is a very brief judgment in which, adopting the conclusions in Hammond's Case⁽¹⁾, he is content merely to say that the truth or falsity of the statement could be a relevant factor on the issue of voluntariness (page 537). Cartwright, C.J. took a separate direction and, while echoing the general consensus of the courts in all these jurisdictions to the effect that the question to be determined on the voir dire is whether the disputed statement is voluntary, he held that the question though not legally inadmissible should not have been asked and further that the trial judge had wrongly exercised his discretion in allowing it. He felt however that the wrongful exercise of discretion did not amount to an error in law and so he declined to interfere. He was incidentally of the view that much of what had been said in Hammond's Case⁽¹⁾ was obiter.

6. I cannot agree that the only reason for excluding an involuntary confession is that it may be untrue so that if it is admitted to be true there is no longer any reason for excluding it. Consideration of the latter proposition to my mind precisely pinpoints the nature of the confusion which has resulted from the decision in Hammond⁽¹⁾. If the truth of the statement is to be not merely a relevant but a decisive consideration on the special issue then when the defendant on the voir dire denies that the statement is true it should be proper for the prosecution to prove the truth of it aliunde. This indeed is the robust view taken by Chamberlain, J. in R. v. Wright⁽³⁾ the Australian decision on which Mr. Marash principally relies. At page 270 he says:

"Another objection made is that if the prosecution are to be permitted to ask if the confession was true, they could equally well prove it to be true by external evidence. I do not see that this provides any objection. If it requires external evidence to enable a judge to decide a question which may well be vital to the trial, then surely the evidence should be given. Supposing in the present case the defendant's answer had been 'What I told the police was untrue, I said it only because I thought I would be better off if I made a false confession - in fact I never touched the knife or the girl.' Could it be suggested that the Crown could not have shown (if it were so) that his fingerprints were on the knife, and bloodstains corresponding with the girl's were on his clothes?"

Neither of the other judges in that case, and no other judge in any of cases cited, was prepared to take the contention that far and for my own part I cannot see how it can be sustained. If that be the law then there is much force in Mr. Ming Huang's contention that the necessity for the voir dire has been altogether eliminated. The Crown would then be at liberty to deploy its full panoply of proof on the issue of guilt for the purpose of discrediting the defendant on the voir dire. The "trial within a trial" would spread to the full limits of the contest on the general issue. I can only, with the greatest respect, regard this passage in the judgment of Chamberlain, J. as a salutary "reductio ad absurdum" of the idea that the truth of the disputed statement is a relevant consideration on the special issue. In the same case Zelling, J., while holding with the majority, takes a very different view from his brother Chamberlain. At page 276 he says:

He went on to consider what he termed the "powerful dissent" of Hall, J. in DeClercq⁽²⁾ in relation to the policy of the law against self-incrimination and then he said (p.277):

"Weighing these competing statement of policy as best I can, I find myself, with respect, in agreement with the majority judgment. In my view, the questions were legally admissible subject to the exercise of judicial discretion which is discussed later in this judgment."

Bray, C.J. in the same case (like Cartwright C.J. in DeClercq⁽²⁾) took a somewhat different path from his colleagues. He was of the view that the question was always admissible as to credit on the voir dire but also held that it might in some additional and separate sense be relevant on the issue of voluntariness. I cannot say that I follow this distinction very well, and it is not made any easier to understand by the illustrations he gives of the way his principle would operate, for he says that the question of the truth of the statement would probably not be relevant on the voluntariness issue where the alleged impropriety amounted to a mild inducement of the kind familiar in the old cases where statements have been excluded because the defendant was exhorted that "it would be better for him to tell the truth". It probably would be relevant, he says, where the impropriety alleged was physical maltreatment. Even allowing the validity of the distinction between relevance as to credit and relevance in relation to voluntariness it is not easy to see how the truth of the statement is more relevant to one situation than to the other. Physical force may occasion a false admission of guilt but so might a mere exhortation if the suspect was timid and overawed by his circumstances. Both are capable of producing either a true confession or a false one. Given the variety and unevenness in the distribution of physical and moral resources among individuals I do not think it would be wise to attempt the formulation of some general rule of psychology to provide a guide in the matter. In any event it is clear from the judgment of Bray, C.J. that, he too, although dealing with the question as one of discretion to exclude, was satisfied that impropriety or unfairness (matters which I think he equated with each other) were, on their own, grounds for excluding a confession apart from truth for he says in relation to that discretion (page 262):

"Objectionable police methods do not become unobjectionable if they turn out to have been successful in eliciting the truth."

He does not support the idea that the Crown could call evidence to prove the truth of the disputed statement.

7. I find abundant authority in the cases cited to show that the exclusion of involuntary confessional statements is grounded equally in public policy as in the fear that they may not be true. That policy as I see it embraces two things: (a), the need to preserve some check by the Courts on improper investigative practices; and, (b), the need to preserve the common law right enshrined in the maxim "nemo tenetur seipsum accusare". I prefer the Latin over the English equivalents "the right to silence" or "the right against self-incrimination" because it emphasizes that no one is to be placed in the position of having to accuse himself as an alternative to some other disadvantageous course. The three dissenting judges in DeClercq⁽²⁾ regard the maxim as providing the root of the objection to the putting of this question on the voir dire. At page 554 Spence, J. says:

"Because the rule against compulsory self-incrimination is the root of the objection, I cannot agree that this is a matter of judicial discretion respecting the extent of cross-examination on credibility."

8. In Reg. v. Van Dongen⁽⁴⁾ Carrothers, J. at page 56 says:

"The accused is not a compellable witness and ought to have the protection of the fundamental principle expressed in the maxim 'nemo tenetur seipsum accusare.' His right not to give evidence should not by indirection be violated. He ought to be able on a voir dire to give evidence on the circumstances and influences surrounding the making of an inculpatory statement prior to trial, which statement is being sought by the prosecution to be introduced against him at trial, without prejudicing his right to immunity from self-incrimination."

Admittedly he is there dealing with the second of the questions which I posed at the start viz.: can the answers on the voir dire be introduced on the general issue - and he has already consented to the view that the question is admissible as to credit on the voir dire - but the principle applies equally at both stages and indeed if it is valid, logic would seem to imply that it should be applied at the earlier rather than the later stage. Mr. Marash has relied on s.54(1)(e) of the Criminal Procedure Ordinance which he says takes away the defendant's right to silence. That right he says exists only outside the confines of the court: within the court the defendant is free to give evidence or not to give evidence and if he decides to do so he is obliged to answer questions even if the answers may incriminate him. Zelling, J. in Wright's Case⁽³⁾ would allow an escape from this dilemma by reference to the wording of the equivalent Australian legislation which he says permits the question to be put but does not oblige the defendant to answer. But leaving that aside it seems to me that it is idle to contend that a defendant, who is freouently the only source of evidence to counter the prosecution's story of entire propriety, is not, in nearly all cases, obliged to go into the witness-box in order to challenge the damaging statement. Once there, if this question is permissible, he must inevitably take the risk of being his own accuser. There is substance in the criticism of this situation in the article by Mr. Neasey (later Neasey J.) in the Australian Law Journal for 1960 at page 111 where he comments that the accused thus faces the unfair alternative of confessing his crime (if his statement to the police was true) or of committing perjury. It is true that he takes the view that Hammond⁽¹⁾ was rightly decided although he clearly does not relish the decision and goes so far as to stigmatize the result as "absurd". I suggest therefore that even if I am wrong to say that the answer to the question "Is it true?" on the voir dire is not relevant to the special issue nevertheless there remain two other roots to the claim to have the confession excluded even if it be true. The first is in the maxim "nemo tenetur etc.", to which Hall, J. refers in the passage quoted above from DeClercq⁽²⁾, and that would oblige the judge to prevent the question being put, no question of discretion being involved for even if it be said that the question has potential probative value its probative value can scarcely exceed the prejudice to the defendant of being, in effect, put under eath or affirmation, to plead a second time when he has not chosen to do so. Alternatively, if this be wrong then as a question of discretion he should at the later stage, having excluded the statement, exclude any answers given on the voir dire if he was satisfied that the statement had been obtained by means so outrageous that it would bring the administration of justice into disrepute to stand over them. Such a discretion to exclude as acknowledging oppression by authority is approved by Lord Parker in Callis v. Gunn⁽⁵⁾ among other English authorities, although the majority in Wray⁽⁶⁾ did not approve such a principle. In the Canadian case of Reg. v. Hnedish⁽⁷⁾ the principle suggested by Humphreys, J. in R. v. Hammond⁽¹⁾ was considered by Hall, C.J. Q.B. who asked himself whether the decision reflected the "final judicial view held in England". He answered that question by saying that he regarded the opinion expressed in the English case as obiter and he went on to say (page 349):

"Having regard to all the implications involved in accepting the full impact of the Hammond decision which can, I think, be summarised by saying that regardless of how much physical or mental torture or abuse has been inflicted on an accused to coerce him into telling what is true, the confession is admitted because it is in fact true regardless of how it was obtained, I cannot believe that the Hammond decision does reflect the final judicial reasoning of the English courts. I feel that when the point comes squarely to be decided, another court will take a hard look at the whole question, including the implications above mentioned and others."

I can only say that I believe that the courts in this jurisdiction also would welcome some guidance at the highest appellate level on the principles underlying the decision in Hammond⁽¹⁾ even should that decision be regarded as expressing a principle inseparable from the ratio in the case. On the kindred question as to whether valuable evidence discovered as a result of a confession improperly obtained should be excluded Cross on Evidence 3rd Ed. at page 269 suggests that there must be a limit to the doctrine that evidence of a fact such as the discovery of a murder weapon can be given although procured by illegal means as a result of an inadmissible confession. The learned author asks:

"... what if the whereabouts were ascertained by means of prolonged torture of the accused?"

I echo that question and I would say emphatically that where something of that kind was in the picture the courts must retain a discretion to exclude the fruits at least of such abominations from the category of honest proof. Apart from that as a general principle I feel that once it is conceded that even a guilty defendant has the right to put the Crown to proof of its charge, and therefore to challenge a confession improperly obtained, then any device intended to re-introduce the excluded evidence by the back door ought to be disarmed.

9. I think that the Full Court was right to say in NG Chun-kwan⁽⁸⁾ that evidence taken on the voir dire could not be resorted to on the general issue save for the purpose of impeaching credit if the accused gave evidence once more on the general issue. I think the court was wrong however simply to accept in that case that Hammond⁽¹⁾ was rightly decided. On the fuller argument now exposed I would be prepared to say that Hammond⁽¹⁾ should no longer be followed. If this is correct it becomes unnecessary to consider the second question posed at the outset. It should be noted that the decision of the Full Court in NG Chun-kwan⁽⁸⁾ was never drawn to the attention of the learned Commissioner in the submissions on the voir dire. Had it been, it is doubtful that he would nevertheless have done what he did since the persuasive authority of Wright⁽³⁾ would then have been set over against a direct opinion of the Full Court which was to the contrary effect. It may be that what was there said should be regarded as obiter since the point then at issue was not identical with the point here but even so it was an opinion which followed directly on the line of what was decided in that case. Moreover the learned Commissioner who was aware of the Canadian decision of Gauthier⁽⁹⁾ appeared to think that that case favoured the Crown's contention whereas it clearly does not.

10. If I am wrong in all of this then, considering the second of the two questions posed at the start I would say that the decisions in Van Dongen⁽⁴⁾ and Gauthier⁽⁹⁾ are strong support for what we said in NG Chung-kwan⁽⁸⁾ as to the impropriety of resorting to voir dire material in considering the issue of guilt at the conclusion of the trial. I think however that if the court had pressed the logic of the matter to its conclusion it would have departed from the decision in Hammond⁽¹⁾ since with the greatest deference to the learned judge in that case the question was dealt with somewhat summarily, and none of the abstruse and riddling questions which may arise in this area of the law in respect of matters probative as against matters prejudicial would arise if we were firmly to grasp the nettle and say that the truth of the confession is not a relevant consideration on the trial of its admissibility.

11. A final consideration is this: the foregoing examination of the case law and the principles involved in it has, for simplicity, assumed the situation which occurs when a statement amounting to a full confession is fully and simply affirmed on the voir dire. Where, in other words, there is something approximating to a plea of guilty to the charge. That was, of course, not the situation here. What counsel for the Crown did was to elicit in cross-examination a confirmation of certain facts appearing in the statement which did not in themselves amount to a confession to the crime but which was essential, in the absence of any other evidence, to establish the presence of the appellant at the scene and to establish his being at one point in possession of a knife. Without those admissions it is very unlikely that his case could have been left to the jury. In such circumstances there does not seem to be any very real distinction between what was done eventually with the voir dire material and cross-examination upon an inadmissible statement. What it amounts to is that Crown Counsel, in pressing the appellant before the jury on statements which the appellant had made in their absence, was cross-examining him on admissions of fact which did not amount to confessions to the crime and which derived from admissions made in the inadmissible statement. It was these admissions, made upon the voir dire, which were introduced as part of the Crown's case later on in the trial before the prosecution case closed by calling the court note-taker to produce part of transcript which included those admissions. In dealing with this evidence Crown counsel was careful not to reveal to the jury that those admissions had arisen out of cross-examination of the appellant upon a statement made to the police which had been excluded from the evidence. The existence of such a statement was never brought to their attention. Although it is true that, following the line taken by the Court of Appeal in England in R. v. Treacy⁽¹⁰⁾, all the authorities to which we have been referred - even those which would allow the accused'a answers on the voir dire to be made known to the jury - agree that the existence of the disputed statement must not be made known to the jury, for my own part I wonder whether that consensus does not precisely circumscribe the area of rights to which an accused person may legitimately resort in insisting that he be not put to the test on the voir dire in this way. The rule in R. v. Treacy⁽¹⁰⁾ is intended to preserve the case of the accused from the damage which might be done to it by revealing a confession or admission wrongfully obtained. Where however the Crown has succeeded in re-introducing the disputed material, or some part of it, under circumstances which, on the face of them, would seem to make the admission or confession unimpeachably reliable, would it not be proper, in justice to the accused, to make manifest statement - similar in effect to that which had been excluded for reasons which the jury might find relevant - in order to explain, or dilute, or extenuate, or expound the admissions on which the Crown sought to rely? It was indeed Humphreys, J. (who gave the decision of the court in R. v. Hammond⁽¹⁾ who, in R. v. Treacy⁽¹⁰⁾ also said (page 96):

"If it" (i.e. then statement) "is not admissible nothing more ought to be heard of it. It is a complete mistake to think that a document which is otherwise inadmissible can be made admissible in evidence simply because it is put to an accused person in cross-examination."

Bray, J. in R. v. Wright⁽³⁾ would seem to echo this idea when, having held that an answer amounting to a confession on the voir dire ought to be admitted in proof of guilt, he went on to say:

"There is, however, one qualification when the judge excludes the confession on the voir dire" - the confession there means the disputed statement - "the jury must obviously not be told that the accused has confessed to the police."

But if the only reason for excluding an involuntary statement were the danger of its being untrue why should nothing more be heard of it when its truth is admitted upon oath? It cannot be solely for the protection of the accused that mention of the inadmissible statement is forbidden although his confirmation of the truth of its contents is allowed. Indeed it may be adverse to his interests not to allow the background to his words appear for, unless the accused is actually pleading guilty, it must be assumed that he is maintaining, notwithstanding an apparent confession to the crime, that the Crown has not proved its case against him. The entire genesis of his admission must surely then be relevant to enable the jury to deal with such a paradoxical situation. At least one would think that should be so where the admission amounts to a plea of guilty. If there is another reason for not allowing knowledge of the statement to the police affect the jury's consideration of the evidence in any way it must be a reason not related simply to the truth or falsity of the statement. I think there is such another reason: it is to be found in that most general duty placed upon a judge to see that the prisoner has a trial which is in every sense a fair trial. That would include seeing that he has not without good reason been put in effect.

Representation:

(1) (1941) 3 ALL E.R. 318.

(2) Vol. 70 D.L.R. 1968 p.530.

(3) (1969) S.A. Stale Reports.

(4) 26 C.C.C. 22.

(5) (1964) 1 Q.B. 50

(6) 4 C.C.C. 1970 p.1.

(7) (1959) Vol. 19 Criminal Reports Candad 347.

(8) (1974) H.K.L.R. 319.

(9) (1975) 27 Can. Cr. Cas. (2d) 14.

(10) 30 Cr. App. R. 93.