8. Confessions PDF

8. Confessions “A confession, whether made by words or otherwise, is a statement wholly or partly adverse to the person who made it.” – Hong Kong Law of Evidence 8.1 Admissibility of Confession Confessions can take the form of oral, written evidence or both. Can...

8. Confessions “A confession, whether made by words or otherwise, is a statement wholly or partly adverse to the person who made it.” – Hong Kong Law of Evidence 8.1 Admissibility of Confession Confessions can take the form of oral, written evidence or both. Can be in the following forms: (1) Police officer or others repeating the confession in his oral evidence (2) Law enforcement officer’s post - record of the confession in police notebook (3) Record of an interview where law enforcement officer record in a statement where D uttered (4) Video recorded interview, where the video captured bot h aurally and visually the confessions made by D 8.1.1 Relevant and Unequivocal A confession must be relevant to the case, and an ambiguous confession is inadmissible. 8.1.1(a) Apologies The defendant saying “sorry” does not always mean a confession — i t is at best equivocal. Similarly, “ah sir, give me a chance” is an equivocal expression. - Lau Ka Yee v HKSAR (2004) – The Court of Final Appeal held that an apology constituted an admission if it was a statement against the interests of the author of the s tatement, but that an apology may also combine with the defendant's conduct to amount to an unequivocal admission of guilt. - Commissioners of Customs and Excise v Harz (1967) – D, a priest, apologised to V who alleged to be sexually abused by D , in a meetin g. The context of the meeting was to persuade the complainant not to publish the story of sexual abuse in a newspaper. In that meeting, the defendant also broke down and made reference to himself being sexually abused when he was young. It was held that an apology in those circumstances amounted to an unequivocal admission. 8.1.1(b) Admissibility of Equivocal Statements HKSAR v Zhou Limei [2017] Facts - The defendant was intercepted upon arrival at the Hong Kong Airport. - A search of the defendant’s suitcase revealed two packets containing a white powder which tested positive for heroin. - When asked (under caution) what are the substances found in her sui tcase, the defendant replied “I suppose this is dangerous drug?” in Punti ( 我諗呢一啲係毒品 啩 ) Held In allowing the appeal and quashing the conviction, the CFA held that the statement was ambiguous and should not be admissible. Much emphasis was placed on the last syllable 「 啩 」 which the CFA held that what the defendant meant was only suspicion instead of knowledge to the dangerous drugs. As such, the utterance was ambiguous and the trial judge erred in allowing the same to be placed before the jury. Rule CFA’s summary of relevant principles (1) Where the prosecution seeks to rely on an equivocal state ment as an admission, the judge should consider whether it is reasonably capable of constituting an admission probative of a relevant fact in issue. (2) If it is so capable, subject to the exercise of the court's residual exclusionary discretion, it is ad missible and should be left to the jury to decide if it does, in fact, constitute an admission, to be relied on as an exception to the hearsay rule. If it is not reasonably capable of being an admission, it is inadmissible. (3) If the statement is left to the jury, they should be permitted to consider the whole of what transpired, placing the statement in context. (4) The jury should be told that they can only rely on the statement against the defendant if they find beyond a reasonable doubt: (i) that th e defendant made the claimed admission; (ii) that, viewed in context, it was indeed intended to be an admission probative of a fact in issue; and (jii) that the substance of the admission is truthful. (5) The judge should give appropriate directions as to how to deal with the statement, drawing attention to its ambiguity and other possible meanings and indicating any matters that the jury may take into account in deciding whether admission was intended. The judge should also give appropriat e directions in respect to how any contextual evidence may or may not be used. (6) The judge should also identify for the jury, if they find that the statement is an admission, what its scope or limits are, i.e. , what it is that the defendant may be found to have admitted. (7) Since an equivocal statement may have little probative value, the judge has to consider whether to exercise his discretion to exclude the statement on the ground that its probative value is outweighed by a risk of unfair prejudice. The more equivocal the statement, the less may be its probative value. Depending on its content and relevance, the fact in issue provable by the statement may be of greater or lesser probative value in relation to the offence as a whole. Evidence admitted to establish the statement's context may be highly prejudicial. Summary: (1) When the prosecution wants to use a statement that is uncertain in meaning ("equivocal statement") as evidence, the judge must decide if it could reasonably be considered evide nce for a relevant fact in the case. (2) If it is admissible, subject to the court's discretion to exclude it ("residual exclusionary discretion"), the statement can be used as an exception to the "hearsay rule" and presented to the jury. If it is not adm issible, it cannot be used. (3) The jury must take into account the entirety of the situation when considering the statement, and put it into context. (4) The jury can only use the statement against the defendant if they are certain that the defendant made the admission and that the admission was intended to be evidence for a relevant fact ("probative of a fact in issue") and truthful. (5) The judge must give guidance on how to approach the statement and must address its ambiguity, any possible meanings, an d how the context can or cannot be used. (6) If the statement is considered an admission, the judge must inform the jury of what it means and what the defendant may have admitted. (7) Equivocal statements may not be very useful, so the judge may choose to exclude them if their value is outweighed by the risk of prejudice. Contextual evidence may also be prejudicial. 8.1.2 Declaration Against Self - Interest Commissioners of Customs and Excise v Harz (1967) “A statement of fact which suggests an inference as to any fact that is relevant and which is adverse to the interests of the person responsible for the statement is, however, generally against him, although it is “hearsay” and is usually described as an admission.” - Broadly speaking, a confessi on is a declaration against self - interest 8.1.2(a) Mixed Statements - Inculpatory Statement : one which shows or tends to show the guilt of the defendant. ­ Admissible if voluntary and residual discretion to exclude not exercised - Exculpatory Statement : one wh ich D denies being guilty ­ Inadmissible because it falls within the rule against hearsay and possibly the rule against prior consistent statement as well - Mixed Statement : one which is partly inculpatory and partly exculpatory R v Duncan “Where a “mixed” statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than ev idence of the facts they state.” - The jury must consider the entire statement – it is not helpful to try to separate the incriminating parts from the exculpatory parts of a mixed statement. Instead, the entire statement should be considered as a whole. - The jury must consider where the truth lies – he purpose of considering a mixed statement is to determine the truth of the matter. Therefore, the jury must weigh all of the evidence, including any mixed statements, in making their decision. - The method used mus t be simple and just The CFA in Li Defan v HKSAR adopted the liberal approach and expressly approved R v Sharp and R v Duncan. It also made clear that the exculpatory parts of mixed statement do indeed have less weight than the inculpatory parts. If the defendant elects not to give evidence and has made a mixed statement, the Specimen Directions provide the following directions which basically follow R v Sharp and Li Defan v HKSAR “The defendant’s statement to the police contains both incriminating parts and [excuses] [explanations]. You must consider the whole of the statement in deciding where the truth lies. You may feel that the incriminating parts are likely to be true — for why else would he have made them? You may feel that there is less weight to be attached to his [excuses] [explanations], for they were not made on oath, have not been repeated on oath, and have not been tested by cross examination.” 8.1.2(b) Uncommon Confessions - Confession via an apology ­ HSKAR v Lau Ka Yee [2 005] 1 HKLRD 757 ­ D was a seminarian – training to become a minister ­ Accused of sexual against a male student and said “I have hurt you; I’m sorry” upon meeting the student. ­ Statement against interest and is unequivocal – therefore it comes in as evidence of guilt - Confession by legal counsel ­ R v Turner (1975) 61 Cr App R 67 (a barrister’s apology in court upon behalf of his client is admissible against client). Apology Ordinance 5 Apology to which this Ordinance applies (1) This Ordinance applies to an apology made by a person on or after the commencement date of this Ord inance in connection with a matter, regardless of whether – (a) the matter arose before, on or after that date; or (b) applicable proceedings concerning the matter began before, on or after that date 6 Meaning of applicable proceedings (2) However, an applicable proceedings do not include – (a) criminal proceedings; ... 8.1.3 Voluntariness If a confession is NOT voluntary then it is INADMISSIBLE DPP v Ping Lin (1976) The prosecution must prove the confession was not obtained - Out of fear or prejudice (a threat) - Or hope of advantage (an inducement) - Or gain by oppression Procedure: Ruling on Admissibility - Confession must be voluntary - Where D alleges his signed confession was obtained by force or trickery, the issue of voluntariness is raised. - The trial judge must then rule on whether the confession was voluntarily made - The failure to do so → any conviction obtained should be quashed - Ajodha v The State [1982] AC 204 (PC) – Unless the failure to voir dire on voluntariness is harmless error. HKSAR v Chan Siu Keung [1997] HKLY 262 Causal Link - A confession is involuntary, if the threat, inducement or oppression causes the confession - The y have to prove a negative DPP v Ping Lin (1976) – Two part general test 1) Was there a threat, inducement or oppression that was capable of influencing* the accused’s mind? 2) Has the prosecution proved beyond a reasonable doubt that the threat, inducement or oppression did NOT influence the accused’s mind? * Person in authority standard 8.1.3(a) The Special Concern with Persons in Authority If a confession was obtained through the involvement of a person in authority, the judge must decide: 1) Was there conduct on the part of the person in authority which was capable of amounting to an inducement (fear of prejudice or hope of advantage); and 2) Whether, if the answer to (1) is “yes”, the prosecution has proved that D was not in fact influenced by the conduct so as to produce the confession. Who is a person in authority? Someone who instigates or control criminal proceedings: - Police and investigating authorities - Prosecutors - Persons causing the arrest or detention - Court personal But NOT - A government psychiatrist (she does not initiate or control criminal proceedings): R v Ma Wai - fun [1962] HKLR 61 - A fellow employee: Lam Sai - cheung v HKSAR [1998] What is an inducement by a person in authority? (1) Negative Inducements - Violence or threats of force R v S mith (1959) – Violence doesn’t have to be extreme; forced marches can be enough - Fear of Prejudice - Threats of being charged with higher crimes if D doesn’t confess (R v Sparks (1964)) (2) Positive Inducements - Promises (e.g., it is just a fine) - R v Zaveckas (1970) – Promise of bail (3) Words from parents, in the presence of police officers, can amount to an inducement R v Cleary (Patrick Joseph) ( 1963 ) Facts - Prisoner’s father said to him in the presence of police officers, “Put your cards on the table. Tell them the lot ... . If you did not hit him, they can’t hang you.” [Statement was actually incorrect] - Prisoner makes a statement and gets convicted of manslaughter Held Father’s words were capable of amounting to an inducement But a self - generated belief that an inducement exists is not necessarily an actual inducement ⭑ Chau Ching Kay v HKSAR [2003] Ratio Whether a self - generated belief is an inducement depends on the totality of the circumstances Facts - D and his girlfriend were arrested as they attempted to break into a home - D told officer he would confess and tell about 2 other jobs if is girlfriend was released - Officer did not respond - D then confessed on video - D later claimed the confession was induced and not voluntary Issue Was the officer’s silence in the face of a conditional offer to confess an implied inducement? Held Here where the girlfriend had also been brought to the police station and the defendant passed on numerous opportunities to ask questions about her release, the police had not induced him to confess. There was no inducement. 8.1.3(b) Persons NOT in Autho rity If a confession was obtained through the involvement of a person NOT in authority: - Voluntariness remains an issue - Confessions caused by inducements, threats or violence are still inadmissible The test is then whether the inducements, threats or violence in fact deprived the defendant of her free will . - Note that it is not whether the conduct was capable of depriving – the standard here is much higher - Lower level threats or inducements are possible Whether a pe rson is in authority is a subjective and not an objective test: Rothman v. R (1981) - Example: Undercover officers – They are allowed to make certain types of threats - If a suspect confesses to an undercover police officer in ignorance of the fact that he or she is a police officer, a confession will not have been made to a person in authority for the purposes of admissibility 8.1.3(c) Oppression Oppression “ tends to sap ... that free will which must exist before a confession is voluntary .” R v Priestley (1965) Usually it entails some form of impropriety - R v Fulling (1987) : Police telling D [truthfully] that her lover is having an affair is not oppressive. - R v Hudson (1981) : Older person questioned for hours in hot conditions → Oppressive - R v Paris (1992) : Hostile, repetitive and intimidating questioning of a young man with an IQ of just 35 → Oppressive 8.1.3(d) Residual Discretion to Exclude – Beyond Voluntariness Secret ary for Justice v Lam Tat Ming [2000]: Where a confession is voluntary, it can still be excluded if a judge finds it was unfairly obtained. However, such ruling should be quite rare - Should only be given in certain circumstances ­ The prejudicial effect mu st be out of proportion to its probative value; and ­ The confession must be so unreliable that no jury properly directed would convict - Breach of the Secretary for Security’s Rules and Directions for the Questioning of Suspects and the Taking of Statements may give rise to a residual discretion exclusion ­ A breach of the Rules and Directions will not automatically lead to the confession being excluded; but such a confession may be excluded if the breach is so substantial as to jeopardize the defendant’s right to a fair trial 8.2 Confessions and the Right to Remain Silent 8.2.1 Common Law vs Hong Kong Under common law, the right to silence is not absolute - Murry v United Kingdom (1996) 22 EHRR 29 (the accused’s silence in the face of an accusation may amount to a confession). - In the UK, since 2003, it has been made clear that D's right to remain silent might amount to a confession - NOT TRUE IN HONG KONG - t he right to remain silent is more absolute Nevertheless, in general, the exercise of the right to silence should not be used against an accused in any way - HKSAR v Cheung Oi Hin (2009) : where a defendant elected to remain silent under caution, he could not be cross - examined on why he put forward an explanation at a later stage - HKSAR v Wong Shuk Fong (2008) : a person’s silence at the scene cannot be held against him in trial - HKSAR v Lam Sze Nga (2006) : no inference of guilt can be drawn from defendant’s failu re to make exculpatory statements 8.2.2 Where Right to Silence is Not Absolute HKSAR v Chan Kau Tai [2006] 1 HKLRD 400. - Where the defendant is selective as to which questions he answers and which he does not, it is fair to show the entire interview to the jury, even where he remains silent. - Acceptable to show that they didn't just remain silent - however, if they selectively asnwered and not answered others - allowed to show 8.3 Cautioned Statements Secretary for Security: Rules and Directions for the Qu estioning of Suspects and the Taking of Statements - Internal rulebook states the following on when they are cautioned - But importantly this is not a law – it is GUIDELINES Rule II: Reasonable grounds to suspect a person has committed an offence “You are no t obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.” - If you suspect someone in committing a crime – then they should say the above things Rule III: Person is charged or informed he may be prosecuted - When confronted: Rule 3(a) "Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evid ence." - Standard cautioning – not required by law that they should do so – but an internal rule that they must follow. - When questioned: "I wish to put some questions to you about the offence with which you have been charged (or about the offence for which you may be prosecuted). You are not obliged to answer any of these questions, but if you do the questions and answers will be taken down in writing and may be given in evidence."