ACTION NO. 90 OF 1971
and see remarks of Huggins J. in R. v. LI Wai-leung 1969 H.K.L.R. 642. However, as regards voluntary confessions, the discretion to exclude appears to be on a somewhat wider principle than risk of prejudice, and is apparently based on fairness. In some cases, the distinction between admissibility and exercise of discretionary powers in respect of statements by accused persons is not sufficiently distinguished. They are distinct matters though related and to a degree overlapping and interwoven. However there is a vital distinction. The question of discretion only arises if the evidence is admissible. If it is not admissible then the question of discretion does not arise.
6. In referring to cases one must of necessity be selective. I, myself think the law is most clearly set out in the decision of the High Court of Australia in R. v. LEE (1950) 82 Commonwealth Law Reports 133, which I consider demonstrates a full knowledge and understanding of the law. It sets out the Common Law and the decision is not dependent on local legislation. I also find of particular assistance the decisions in R. v. Corr 1968 Northern Ireland Reports 193 and R. V. LI Wai-leung 1969 H.K.L.R. 642.
7. For a confession made by an accused person to be admissible in law there are two rules to which it must conform:-
(1) It must be relevant; and
(2) It must be voluntary.
There is an exception as to the necessity for voluntariness where one accused seeks to have admitted in evidence a confession made by a co-accused R. v. Attard, R. v. Mifsud (1970) 1 New South Wales Reports 750, but in such circumstances a special direction to the jury is necessary as to the purposes which for which confession is admitted. The rules apply also to admissions which do not amount to confessions.
8. Commissioners of Customs and Excise v. Mars 1967 2 H.K.L.R. 297. The wording of the Judges’ Rules referred to at page 304 therein, as emphasised by Lord Reid, would indicate that the rule as to voluntariness also applies to an exculpatory statement made by an accused if the Crown wishes to lead it e.g. to show a concocted story. This has been specifically held by the Supreme Court of Canada in Piche v. R. (1970) Canadian Criminal Cases 27, and there is a similar implication in Lee’s case at page 146 and page 152, and it was so assumed without being decided in A.G. v. McCabe 1927 Irish Reports 129. It is not clear from the report whether or not this test was applied to the statement in Mawaz Khan v. R. 1966 3 W.L.R. 1275.
9. I do not propose to deal with the question of relevance which seldom causes difficulty, but pass on to the matter of voluntariness. Many of the cases and authors treat voluntariness as if it is merely a matter of whether or not there were threats or inducements held out by a person is authority. However those are simply one class of matters that show involuntariness, and the rule is not thereby fully stated. These cases and authors are too narrowly construing the words of Lord Sumner is Ibrahim v. R. 1914 A.C. 599, 609 where he said
“It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale. The burden of proof in the matter has been decided by high authority in recent times in R. v. Thompson  2 Q.B. 12 …………
The appellant’s objection was rested on the two bare facts that the statement was preceded by and made in answer to a question, and that the question was put by a person in authority and the answer given by a man in his custody. This ground, in so far as it is a ground at all, is a more modern one. With the growth of a police force of the modern type, the point has frequently arisen, whether, if a policeman questions a prisoner in his custody at all, the prisoner’s answers are evidence against him, apart altogether from fear of prejudice or hope of advantage inspired by a person in authority.”
10. The passage of Lord Sumner was considered by Lord McDermott in R. v. Corr 1968 Northern Ireland Reports 193, 210 where after quoting it, he continued:
If the definition which resides in the words ‘not …… obtained ….. “by fear of prejudice or hope of advantage exercised or held out by a person in authority’ is to be applied literally, the statements in question were in our view rightly admitted as voluntary, for the police made no threats offered no inducements, and did nothing to create a fear of prejudice or arouse appellants’ hopes ………. But should this definition be expanded beyond its literal meaning ……….
The rule of law described by Lord Sumner cannot have been intended to apply to all statements which are alleged not to be voluntary, for it relates solely to the conduct of persons in authority; and it is plain also, if only from what Lord Sumner himself said towards the end of the passage just quoted and from his review of the authorities in the same case, that he did not intended his words to apply necessarily to the questions by a person in authority of a suspect in custody. Whether conduct of that sort would render a statement obtained by it inadmissible was one of the matters raised by the facts of Ibrahim’s case, but it was not decided and cannot yet be regarded as entirely settled. As Lord Sumner indicated, the rule he stated is one of policy rather than logic, being directed to the control of those, such is the police, who are in a position of power and authority. But, while this explains why the scope of the rule is confined to what arises from the conduct of this class of persons, it would be verging on the irrational to limit it also to instances of threats or inducements inspiring fear or hope and so as to exclude other forms of conduct by the same class which might be no less capable of eroding the will of the suspect concerned. The effect of a vigorous cross-examination or – to use the words of Pigot C.B. in R. v Johnston (1864) 15 Irish Common Law Reports 60, 122 – of ‘ a series “of searching interrogatories’ on one who is not free to get away from his questioner may, in certain circumstances, be to arouse hope of release or fear of further retention or other prejudicial result in the mind of the suspect, according to whether or not he makes answer or keeps silent. But it may also act more directly by subjecting to the person questioned to a degree of pressure which saps his will and makes him talk. We think such pressure may well lie within the principle of the rule enunciated by Lord Sumner although not within its express terms, and may thus suffice to make statements obtained by it inadmissible in point of law.”
It is to be observed that Lord McDermott was expressing his view that the observation of Lord Sumner may extend to other conduct by those in authority then the instances mentioned by Lord Sumner. Lord McDermott did not extend this other conduct – which is referred to as oppression in the preamble to...