McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Volume 26
Montreal
1981
No. 3
Recent Developments in the Law Relating to Confessions:
England, Canada and Australia
Mark Schrager*
I. The nature and scope of the confession rule
Any suspicion that Lord Sumner’s locus classicus in Ibrahim’
no longer applied in its original form was dispelled by the House of
Lords in D.P.P. v. Ping Lin,’ where the Law Lords stated un-
equivocally that the test of admissibility applying to statements
made by the accused to a person in authority is that laid down in
Ibrahim, as elaborated in paragraph (e) of the Judges’ Rules.8 The
House felt that the rule was too firmly established to be modified
without legislation. Their Lordships affirmed their dictum in
Commissioners of Customs and Excise v. Harz and Power4 where
they also approved paragraph (e) of the Judges’ Rules, which reads
as follows:
that it is a fundamental condition of the admissibility in evidence against
any person, equally of any oral answer given by that person to a question
put by a police officer and of any statement made by that person that
it shall have been voluntary, in the sense that it has not been obtained
from him by fear of prejudice or hope of advantage, exercised or held
out by a person in authority, or by oppression. 5
Thus the test is that of Lord Sumner, coupled with the doctrine of
oppression. In R. v. Prager6 Edmund Davies L.J. (as he then was)
examined the role of oppression in English law, noting that the
* LL.L. (Montreal), B.C.L. (Oxon.); of the Bar of Quebec.
3Ibrahim v. The King [1914] A.C. 599 (P.C.).
2[1976] A.C. 574.
8 [1964] 1 All E.R. 237.
4 [1967] 1 A.C. 760 (H.L.).
5 Supra, note 3.
6 [1976] 1 All E.R. 1114 (C.C.A.).
McGILL LAW JOURNAL
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term first appeared in the Judges’ Rules, 1964 and closely followed
a dictum of Lord Parker C.J in Callis v. Gunn7 which condemned
confessions “obtained
in an oppressive manner”. His Lordship
cited Sachs J. in R. v. Priestley,8 the only judicial consideration of
oppression of which the Court was aware:
this word in the context of the principles under consideration [Judges’
Rules, 1964] imports something which tends to sap, and has sapped, that
free will which must exist before a confession is voluntary9
Sachs J. went on to illustrate what might constitute oppressive
circumstances, outlining examples which lead to the conclusion
that the test is essentially subjective, an approach not inconsistent
with the decision of the House of Lords in Ping Lin.
It is interesting to note that the recommendations contained in
the Eleventh Report of the Criminal Law Revision Committee,’9
while approving R. v. Prager and substituting “oppressive treatment
of the accused” for “oppression”,”- advocated a change in the rule.
A majority of the Committee’s members suggested a limitation of
the rule so as to exclude only statements made in response to
threats or inducements that were likely to produce an unreliable
confession.’ 2 The test applies not to the confession actually made
but to any confession which the accused might have made as a
consequence of the threat or inducement. Both the, recommended
rule and its suggested application appear contrary to Ping Lin in
that the House adhered strictly to Lord Sumner’s test and in that
their Lordships’ view of the rule’s application called for an approach
that is partly objective and partly subjective.
Since adopting the Ibrahim rule,13 the Supreme Court of Canada
has often affirmed its applicability to the admissibility of con-
fessions.’ 4 Despite dicta underlining the usefulness of the Judges’
Rules as guidelines in adjudication,’5 they are not regularly applied
in Canada. Furthermore, in view of the narrow exclusionary discre-
tion of the trial judge, it is difficult to imagine that a contravention
(C.C.A.).
7 [1964] 1 Q.B. 445 (D.C.).
8 (1965) 51 Cr. App. R. 1 (Kent Assizes), aff’d (1966) 50 Cr. App. R. 183
9 Ibid., 1.
10 Evidence (General), Cmnd 4991 (1972).
“Ibid., 60.
‘2 1bid.
18Prosko v. The King (1922) 63 S.C.R. 226.
14 E.g., Boudreau v. The King [1949] S.C.R. 262; Pichd v. The Queen [1971]
S.C.R. 23; R. v. Erven [1979] 1 S.C.R. 926.
15See R. v. Fitton [1956] S.C.R. 958, 964; R. v. Vaupotic (1969) 70 W.W.R.
128, 131 (B.C. Mag. Ct).
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
437
of the Judges’ Rules would be relied upon to exclude a confession
in Canada. It is perhaps this unimportant role played by the Judges’
Rules that explains the absence of authority in Canada’s highest
court which would embrace the doctrine of oppression. There is
recent authority, however, albeit in concurring reasons, that “op-
pression” may be linked with the Ibrahim rule in Canada. In Hor-
vath v. The Queen16 a seventeen-year-old accused, charged with the
murder of his mother, was brought by the investigating detectives
to a police specialist in interrogation. A psychiatrist testified at the
trial that the specialist had by his methods of interrogation un-
wittingly induced a mild state of hypnosis. The accused’s statements
were excluded by the trial judge and the issue of their admissibility
reached the Supreme Court of Canada on appeal from acquittal.
A majority of four judges confirmed the inadmissibility of the ac-
cused’s statements, but they were divided in their reasons. Two
members of the Court held for exclusion on the narrow ground that
statements induced by hypnosis were not voluntary within the
scope of the Ibrahim rule.17 Of interest for present purposes is the
opinion of Spence J., Estey J. concurring, in which, after reviewing
the authorities, the learned judge concluded that a statement could
be involuntary even if not induced by hope of advantage or fear of
prejudice. After citing McDermott v. The King18 and R. v. Priestley,”9
Spence J. reviewed the circumstances of the impugned interrogation
and concluded that no statement made by the accused could have
been voluntary. Nowhere does Spence J. say explicitly that the
doctrine of oppression is part of Canadian law, but his judgment
strongly implies that circumstances construed as oppressive by an
English court should also give rise to exclusion in Canada under a
broad view of the notion of voluntariness set out in Ibrahim.20
While perhaps not formally embracing the oppression doctrine
in its faithful application of the Ibrahim rule, it appears that there
is a tendency for the Supreme Court of Canada to apply the rule
so as to exclude involuntary statements which were not induced
by fear of prejudice or hope of advantage. The Law Reform Com-
mission of Canada has recommended an interesting two-step rule
16 [1979] 2 S.C.R. 376: see the excellent comment by Hutchinson & Withing-
ton, Horvath v. The Queen: Reflections on the Doctrine of Confessions (1980)
18 Osgoode Hall L.J. 146.
17Ibid., 426 per Beetz J., Pratte J. concurring.
18 (1948) 76 C.L.R. 501 (Aust. H.C.).
‘9 Supra, note 8.
20See also R. v. Erven, supra, note 14, 930 per Dickson J. for an oblique
reference to oppression.
McGILL LAW JOURNAL
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to govern the admissibility of the accused’s statements2 1 First,
evidence would be excluded if it had been obtained in such cir-
cumstances that its use in court would bring the administration of
justice into disrepute. Second, statements made by accused persons
in circumstances rendering them unreliable are also excluded. The
proposal is interesting in that it manages to combine notions which
are often considered antithetical, that is, exclusion for unfairness
and inclusion for reliability.
The rule in Ibrahim also appears to be the foundation of the
Australian law of confessions but the breadth of the trial judge’s
discretion to exclude minimizes the importance of the rule or
perhaps expands its scope. Dixon J.’s classic statement of the vo-
luntariness rule was given in the McDermott case:
If [the accused] speaks because he is overborne his confessional state-
ment cannot be received in evidence, and it does not matter by what
means he has been overborne. If his statement is the result of duress,
intimidation, persistent importunity, or sustained, or undue insistence
or pressure, it cannot be voluntary. But it is also a definite rule of the
common law that a confessional statement cannot be voluntary if it is
preceded by an inducement held out by a person in authority and the
inducement has not been removed before the statement is made.22
As there is no recent authority to doubt that McDermott remains
good law, the common law position in Australia resembles the Eng-
lish combination of the rule in Ibrahim and the doctrine of op-
pression. An important exception to this position is found in section
141 of the Victorian Evidence Act, 1928 (now Evidence Act, 1958,
s. 149) which prevents exclusion of a confession made in response
to a threat or promise where that inducement was not “calculated
to cause an untrue admission of guilt to be made”. In R. v. Lee28
the High Court of Australia construed this section strictly in holding
that it only applies to confessions stricto sensu, that is, statements
amounting to admissions of actual guilt, and that the section only
prevents exclusion of confessions which the common law would
reject as involuntary because induced by a threat or promise.
Statements otherwise rejected by the common law (e.g., because
of oppression or unfairness) are unaffected by the legislation. The
Australian Law Reform Commission has recommended that con-
fessions induced other than by physical violence or the threat there-
of should only be excluded if the inducement is considered likely
to have caused the confession to be untrue. The recommendation
closely resembles section 149 of the Victorian Evidence Act, 1958,
2 1 Report on Evidence (1975), 15, 16.
2 Supra, note 18, 511.
= (1950) 82 C.L.R. 133.
1981J RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
439
and is similar to the positions taken by the law reform commissions
of England and Canada.
II. The rule in relation to the rationale
Though certain elements of the confession rule as outlined above
are criticized throughout this paper, in this section the test is
assumed to be essentially that outlined by Lord Sumner in Ibrahim,
that is, voluntariness. A historical analysis of the case law with a
view to defining the rationale of the confession rule would be
beyond the scope of this paper. Rather, it is proposed to survey
the principal rationales that have been advanced in academic writing
and to relate these to recent judicial applications of the rule. It will
be argued that, while the English judiciary has not extended or
limited the rule by applying it as a function of a rationale, the
Canadian courts (and the Legislature of the State of Victoria) have
limited the rule, almost to the point of replacing it, by the doctrine
of reliability or trustworthiness. The courts of other Australian
jurisdictions seem to have extended the scope of the rule by use
of the judge’s exclusionary discretion to something more than a
guarantee of trustworthiness.
Wigmore’s view of the rationale was that voluntariness guaran-
tees the probable truthfulness of the confession.2 4 Professor Ratush-
ny has.written that a proper understanding of this rationale is not
concerned with the actual truthfulness of an impugned confession
but with its potential truth25 –
that the rule is to be applied in-
dependently of the policy which gives rise to it by avoiding a direct
inquiry into the veracity of the confession itself. Even those who
deny that the trustworthiness or reliability doctrine is the only
rationale for the confession rule concede that there is much case
law to support it, including cases decided before Ibrahim as well
as after2 6
Despite the allure of the reliability notion, it does not adequately
explain all the case law and is probably not the sole policy to
motivate the confession rule. Although, as Wigmore points out, the
privilege against self-incrimination has a different origin from the
confession rule,2 7 a strong argument has been made that the two
24 See Evidence, 3rd ed. (Chadbourn revision) (1940), Vol. III, 822.
25 Unravelling Confessions (1971) 13 Crim. L.Q. 453, 476.
26 See Cowen & Carter, “Confessions and the Doctrine of Confirmation by
Subsequent Facts” in Essays on the Law of Evidence (1956), 41, 42 et seq.;
Del Buono, Voluntariness and Confessions: A Question of Fact or a Question
of Law? (1976) 19 Crim. L.Q. 100.
27Supra, note 24, 823.
McGILL LAW JOURNAL
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rules have somewhat fused in practice. 8 Close to this notion lies
the policy of discouraging improper police methods, often referred
to as the disciplinary rationale. This rationale is more traditionally
identified with the doctrine of “the fruit of the poison tree” in
American law,29 but there is little support for it in Commonwealth
case law. It has been criticized as confusing the issues of the ac-
cused’s criminal liability with his rights against those who may
have used actual or threatened violence to coerce his confession.
The same critic has argued that it is no more rational to exclude a
confession as a sanction of police malpractice than to reject any
other illegally obtained evidence.8 0 It has also been suggested that
the rationale which most consistently explains the case law (at
least in England) is the protective principle; that is, as the legal
system has standards of criminal investigation, the citizen has a
corresponding right to be treated in a certain way and not to be
disadvantaged when his rights are infringed.8 1 Since the confession
rule excludes statements obtained when the accused is treated in
a certain manner, it is said that the rule is essentially concerned
with the protection of suspects. It is submitted that such a pro-
tective rationale is little more than a specific manifestation of the
privilege against self-incrimination.
It is of note that in England the Criminal Law Revision Com-
mittee believes that the reliability principle is the historical founda-
tion of the confession rule? As well, the Canadian and Australian
law reform commissions have in varying degrees embraced this
approach. s
While there is direct authority in the English Court of Appeal
that the basic reason for the rejection of involuntary confessions is
the risk that they may be untrue,34 there are cases where confessions
were excluded upon application of the Ibrahim rule, even though in
28 Cowen & Carter, supra, note 26, 47 et seq.
29 On this topic, see generally Maguire, How to Unpoison the Fruit –
the
Fuorth Amendment and the Exclusionary Rule (1964) 55 J. Crim.’ L., C. &
P.S. 307; Pitler, “The Fruit of the Poison Tree” Revisited and Shepardized
(1968) 56 Cal. L. Rev. 579; Comment, Fruit of the Poisonous Tree – A Plea
for Relevant Criteria (1967) 115 U. Pa L. Rev. 1135.
8 0Andrews, Involuntary Confessions and Illegally Obtained Evidence in
Criminal Cases [1963] Crim. L.R. 15 & 77, 18.
31See Ashworth, Excluding Evidence as Protecting Rights [1977] Crim.
32 See supra, note 10, 56.
S3 Supra, note 21, 16; Australian Law Reform Commission, Report (No.
L.R. 723.
2) (1975), 69.
S4R. v. Ovenall [1969] 1 Q.B. 17, 23 (C.A.) per Blain J.
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
441
the circumstances they could be considered reliable.35 In Com-
missioners of Customs and Excise v. Harz and Power, Lord Reid
observed in obiter dicta that the two lines of thought underlying
the case law on confessions are unreliability and nemo tenetur
seipsum prodere.36 However, his Lordship did not venture a pre-
ference for either rationale. In D.P.P. v. Ping Lin the House of
Lords directed the lower courts to apply the Ibrahim rule in a
simple, common-sense manner. Their Lordships did not debate the
rationales of the confession rule, preferring loyalty to precedent
by holding that the rule is clearly established and should thus be
applied by the courts without concern for its policy.37
More recently, in R. v. Sang,38 Lord Diplock expressed the view
that though the rationale of the confession rule may originally have
been reliability it is now nemo debet prodere se ipsum, that is, the
right to silence.39 It is hard to accept that reliability is no longer a
justifying policy for the rule. His Lordship evidently recognizes the
inter-relationship of the various rationales, as he refers to the con-
fession rule as an exceptional instance where the judge, for histo-
rical reasons, imposes sanctions for improper police conduct. His
Lordship thus appears to conflate, at least in the historical context,
reliability with control of police conduct.40 Such a conflation may
well be correct, and the approach of entwining diverse rationales
is supported by Lord Hailsham in his dissenting reasons in Wong
Kam-ming v. The Queen, where he noted that both reliability and the
control of police practice support the confession rule.4 1 Nonetheless,
these views of Lords Diplock and Hailsham are isolated examples.
The majority of the Bench in Sang was loyal to the approach in
Ping Lin by stating no preference of rationale.42 The consensus of
the House in Sang appears to be that the confession rule is essen-
tially concerned with fairness to the accused. Such a view of the
-3R. v. Cleary (1964) 48 Cr. App. R. 116 (C.C.A.); R. v. Richards [1967] 1
W.L.R. 653 (C.C.A.); R. v. Northam (1967) 52 Cr. App. R. 97 (C.C.A.). See also
Cross, Evidence, 4th ed. (1974), 485 and Morissette, Improperly Obtained
Evidence Other than Confessions: A Comparative Study (unpublished D.
Phil. thesis, University of Oxford, 1977), 307 (publication forthcoming).
3o Supra, note 4.
37 Supra, note 2, 595 per Lord Morris of Borth-y-Gest; 607 per Lord Salmon.
38 [1980] A.C. 402 (H.L.).
30 Ibid., 436.
40 For clarity, it should be noted that the House of Lords held in Ping Lin
(supra, note 2) that police impropriety as such is irrelevant in applying
the confession rule.
41 [1980] A.C. 247, 261 et seq. (P.C.).
42 Supra, note 38, 444-5 per Lord Salmon; 450 per Lord Fraser; 453 per
Lord Scarman.
McGILL LAW JOURNAL
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confession rule is, however, consistent with the various rationales
proposed; for example, it is fair that the accused not have his
unreliable statements received against him, just as it is fair that his
right to silence be respected or that he not be subject to mistreat-
ment by the police. If a wide policy basis is recognized in Sang,
even implicitly, is there inconsistency with the direction in Ping Lin
that the confession rule should be applied without concern for its
rationales? It is submitted that the two views are not necessarily
contradictory. It is feasible to deal adequately with simple cases by
a mechanistic application of the rule. In hard cases, however, the
rationales should be considered. If a discretion to exclude con-
fessions not caught by a strict application of the rule exists, and if
that discretion is applied as a function of the various rationales,
then Sang and Ping Lin need not be viewed as contradictory. The
simple case will be governed by the rule, the hard case by the
rationales. The rule itself will thus remain intact while all con-
fessions offensive to its policy basis will be excluded as well. This of
course rests on the assumption that the House of Lords did indeed
recognize a broad basis in policy underlying the confession rule,
and that the various rationales together constitute the broad criteria
governing the application of the exclusionary discretion.
The Supreme Court of Canada in recent years has moved toward
an acceptance of the reliability rationale, to the extent of limiting
the rule by it (and perhaps replacing the rule with this rationale).
In R. v. Wray,4″ a majority of the Supreme Court approved R. v.
St Lawrence4 4 in holding inter alia that that part of an otherwise
inadmissible confession confirmed by real evidence discovered as a
result of the accused’s statement is admissible. The reason for this
conclusion is that the discovery of real evidence removed the danger
of untrustworthiness from that part of an involuntary confession
thus confirmed. In DeClercq v. The Queen,4 5 while maintaining that
the ultimate issue on the voir dire is voluntariness, the Court per-
mitted that the accused, testifying in the trial within a trial, be
asked whether the impugned confession is true. The Court felt
that the truth of the statement had a logical bearing on whether
or not it was voluntary and that it was relevant to an assessment
of the accused’s credibility as a witness during the voir dire. It
was pointed out by dissenting members of the Court that allowing
such a question was irrelevant to voluntariness and would undermine
that criterion. Although the majority emphasized the main issue
4 [1971] S.C.R. 272.
44 [1949] O.R. 215 (C.A.).
45 [1968] S.C.R. 902.
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
443
on the voir dire as voluntariness, it is submitted that allowing a
direct inquiry into the truth of the statement implies at least tacit
recognition of the reliability rationale and a tendency to subvert
the rule (concerned with voluntariness) for a consideration of the
rationale as the test on the voir dire. In Boulet v. The Queen4 6 the
Supreme Court had to consider the admissibility of statements
made by the accused without the “protection of the court” at the
preliminary inquiry of his accomplice. Beetz J. spoke for the Court
and held that statements made under oath by an accused in a prior
judicial proceeding are admissible without evidence of voluntariness.
The reason given was not that the law presumes such statements
to be voluntary but that they were given under pain of perjury. His
Lordship went on to mention such objective guarantees of trust-
worthiness as the safeguard of rights by the presiding judge and
the lack of physical constraint. The obvious influence upon the
Court of the reliability rationale is especially interesting when one
considers that the case might have been decided on the basis that
the Ibrahim rule has no application to statements made in judicial
proceedings and, in particular, that a judge presiding over adver-
sarial proceedings is not a person in authority as understood in the
law relating to confessions. The pinnacle of this movement from the
rule to the reliability rationale came in the Supreme Court’s judg-
ment in Alward and Mooney v. The Queen,47 where Spence J.,
speaking for the majority, quoted with approval the following
passage from the judgment of the lower court:
The true test, therefore, is did the evidence adduced by the Crown
establish that nothing said or done by any person in authority, could
have induced the accused to make a statement which was or might be
untrue because thereof.48
The confession in Alward was made as a result of a false statement
by a police officer, to the effect that the victim had regained con-
sciousness and would be able to identify his assailants. Limerick
J.A., speaking for the New Brunswick Court of Appeal,49 held that
the type of fear induced by such a statement was not that of reprisal
for remaining silent with which the confession rule is concerned.
His Lordship stated that the principle upon which the rule is
founded is one of trustworthiness and then went on to state the
rule as quoted above. On the basis of these four cases it is submitted
that however much the Supreme Court may maintain in obiter
46 [1978] 1 S.C.R. 332.
47 [1978] 1 S.C.R. 559.
48Ibid., 562, quoting Limerick J.A. (1977) 73 D.L.R. (3d) 290, 306 (N.B.C.A.).
49 Supra, note 48.
McGILL LAW JOURNAL
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dicta that the issue in the voir dire is voluntariness, 0 it has de-
monstrated a preference for the reliability rationale and a tendency
to construe and apply the Ibrahim rule as a function of that rationale
to the point of limiting the rule’s exclusionary effect to statements
caught by the rationale, not the rule. Furthermore, in Alward the
Court approved a formulation of the rule which appears tantamount
to a replacement of that rule by its rationale.
The State of Victoria has explicitly opted for the reliability
rationale in section 149 of the Evidence Act, 1958, ‘ but the High
Court narrowly construed the ambit of that enactment in Lee,”2
holding that the common law still applies to matters not covered
by section 149, that is, statements other than those induced by a
threat or promise. The common law was held to include judicial
discretion to exclude statements admissible under the Ibrahim rule.
In view of the statute, regard could be had in exercising the discre-
tion to the probable .truth of the statement, though the ultimate
consideration was held to be fairness to the accused 8 It was added
that it is relevant to consider compliance by the police with the
Judges’ Rules in adjudicating on the issue of fairness. It could be
asserted on the basis of Lee that the High Court accepted reliability
as the rationale of the confession rule but that other policy con-
siderations are relevant to the exercise of the discretion. However,
it is equally consistent to assert on the basis of Lee that the Court,
in narrowly construing section 149 and affirming the fairness cri-
terion of the discretion, felt that the rationale of the Ibrahim rule
lay in something more than reliability, and that the common law
discretion exists to exclude for unfairness a statement admissible
(and reliable) under Ibrahim. This position is borne out by subse-
quent judgments in other Australian states. In R. v. Wright54 re-
pression of improper police tactics was thought to be a rationale.
That decision supported the judgment of Neasey J. in R. v. Toomey, 5
where the learned justice expressed the following view, which
summarizes well the general position in Australia:
Unreliability of enforced or induced confessions cannot in my opinion
now be said to be the .only policy reason behind the voluntary confession
WO E.g., DeClercq v. The Queen, supra, note 45; Horvath v. The Queen,
supra, note 16, 432. See also Roberts, The Legacy of Regina v. Wray (1972)
50 Can. Bar Rev. 19; Note, Developments in the Law – Confessions (1966)
79 Harv. L. Rev. 935.
51 See text following note 22, supra.
52 Supra, note 23.
53E.g., McDermott v. The Queen, supra, note 18.
54[19693 SA.S.R. 256, 264-5 (S.C. in banco).
55 [1969] Tas. S.R. 99 (S.C.).
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
445
rule. A perusal of the history of the development of the Judges’ Rules
as an adjunct to the voluntary confession rule, and the broad inten
pretation of that rule in Cornelius v. R., McDermott v. R. and R. v. Lee,
will show, I think, that the privilege against self-incrimination and
control by the courts of improper police practices are at least as much
involved in reasons behind the rule as the question of unreliability. 6
It is submitted that the attitude of the Australian courts is
preferable. The approach of the House of Lords in Ping Lin, adher-
ing to the rule without consideration of its rationale, may be sound
in precedent and appears to promote certainty in the law. However,
that same refusal to discuss
the underlying policy affords no
guidelines to trial judges in applying the rule and in exercising their
discretion. But this may be mitigated if, as suggested, the House is
taken to have endorsed a wide policy basis by its classification of
the confession rule in Sang as a rule of fairness. The plain and
exclusive acceptance of the reliability rationale by the Supreme
Court of Canada is, it is respectfully submitted, wrong. The original
rationale of the confession rule will probably never be known with
certainty, but it seems clear that reliability is not the only answer.
The divergence of credible academic opinion and the reluctance of
the House in Ping Lin to enter the debate bear this out. Further-
more, the Ibrahim rule, applied without consideration of its policy,
does exclude statements which might be reliable.57 It is submitted
that a rule, such as the confession rule, concerned with the manner
of obtaining evidence should be allowed to exclude that which might
be reliable evidence. The considerations surrounding the application
of the confession rule should not be confounded with the ad-
missibility of illegally obtained (real) evidence. The criterion perti-
nent to admissibility of the latter type of evidence is relevance.
The manner in which such evidence has been obtained is not relevant
to a consideration of its prima facie admissibility. The essence of
the confession rule demands that it respond to the manner in which
evidence was obtained; for example, did a person in authority hold
out hope of advantage? 58 The rule concerned with the admissibility
of illegally obtained evidence operates irrespective of the manner
in which evidence has been obtained. The illegal or improper means
of obtaining is irrelevant to prima facie admissibility. As such, this
rule of admissibility is basically inclusionary. Opposing the con-
fession rule to the relevance rule, as the latter relates to illegally
obtained evidence, invites a judicial inclination toward exclusion of
56 Ibid., 104.
57 E.g., R. v. Cleary, supra, note 35; R. v. Richards, supra, note 34; R. v.
58See R. v. Sang, supra, note 38, 274 per Viscount Dilhorne.
Northam, supra, note 35.
McGILL LAW JOURNAL
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confessions. Such an attitude is justified not only by examining
the confession rule in the aforementioned context, but by the very
articulation of the rule itself; that is, the Ibrahim formulation pre-
supposes, as a starting point, inadmissibility of admissions made to
persons in authority. Advocating such an exclusionary attitude in
relation to confessions obviously embraces a policy basis that is
wider than mere reliability. As such, this position imports to the
law of evidence considerations of controlling police behaviour and
the protection of individual rights and liberties. Some may argue
that such an approach is foreign to the common law of evidence.
The response to such an argument is that principles such as
nemo tenetur seipsum prodere are as much an integral part of the
law of evidence as is the admissibility of that which is relevant.
Those who feel hostile to such an attitude may rebut it with
the contention that this exclusionary, protective approach inclines
toward the underlying reasoning of the doctrine of “the fruit of
the poison tree” of American Law, a concept that is foreign to
British legal and constitutional traditions.” However, that is to
look at the wrong side of the coin. It is hardly alien to the common
law tradition that liberty of the individual should be safeguarded
by rules entrenched in precedent and not in constitutional docu-
ments.
It is therefore submittted that to construe the confession rule
merely as a function of the reliability rationale disregards policy
considerations which are built into the rule itself and which are
perfectly harmonious with a coherent law of evidence.
III. The type of inducement that will vitiate a confession and the
role played by the accused’s state of mind in making that
determination
It is not the aim here to set out a list of inducements held by the
courts to have rendered confessions inadmissible. Such a determina-
tion is a question of fact to be considered in the circumstances of’
each case. In Ping Lin the House of Lords strongly urged the lower
courts to avoid an overly legalistic attitude and to apply the Ibrahim
rule to the facts at hand without reference to previous decisions
resting on similar evidence 0 In view of this it is only necessary,
to review several general points of principle.
Is the promise or threat exercised by the person in authority to
be analyzed objectively or subjectively? In R. v. Northan 1 the
59 See text at note 29, supra, and the sources cited in that note.
60 See D.P.P. v. Ping Lin, supra, note 2, 600 per Lord Hailsham, 606 per
61 Supra, note 35.
Lord Salmon.
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
447
accused was arrested for house-breaking at a time when he was
on bail awaiting trial for a similar charge. The accused ventured,
without contradiction by the police, that if he admitted his involve-
ment in the house-breaking for which he was under arrest it
might be taken into consideration at the trial of the other charge.
In quashing the conviction Winn L.J. held that the investigating
detective had accepted the accused’s suggestion, and that the
standard against which to assess the inducement is not that of the
reasonable man but the average, normal, and probably unreason-
able person. His Lordship decided that there was an inducement
capable of influencing the mind of this appellant, albeit he himself
appears to have misunderstood the inducement which was being offered
to him. In a sense he was self-induced by a mistaken view, but not a
view which it is impossible that he could honestly have formed, as to
what was the effect of the arrangement that had been come to.62
Winn L.J. obviously manifested a preference for the subjective
approach. It has been asserted that such an approach which looks
at the accused’s mental processes connotes an acceptance of the
rationale of reliability and the privilege against self-incrimination,
while an objective construction of inducements in terms of police
conduct would imply an acceptance of the rationale of controlling
police behaviour0 3 Though support for the pure subjectivist view
can be found in Lord Reid’s speech in Commissioners of Customs
and Excise v. Harz and Power,64 the House of Lords appears in
Ping Lin to have adopted a view which is partly objective and
partly subjective, holding that the test is concerned with the
reasonable reaction by the suspect in question to what was said. 5
In view of this thesis it would appear that the House, in adopting
an approach which is partly objective and partly subjective, either
accepts or denies both types of rationale. It will be remembered
that the House in Ping Lin explicitly refused to enter the rationale
debate and thus maintained consistency with its analysis of the
inducement.
There does not appear to be any recent Australian authority
directly on this point, perhaps because the question is obviated by
the integral part played by the trial judge’s discretion to exclude.
Since the subjectivity/objectivity issue will only arise in marginal
cases (as is borne out by the facts of Northam and Ping Lin), the
discretion to exclude would probably be relied upon by the trial
62 Ibid., 105.
6 See Prentice, Confessions – Controlling the Police (1968) 31 M.L.R. 693-6.
6 Supra, note 4, 820.
65See Joffe, Voluntary Confessions (1976) 39 M.L.R. 226.
McGILL LAW JOURNAL
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judge and thus the issue would not come before an appellate body.
However, it is submitted that the apparent acceptance of both the
rationale of reliability and control of police conduct connotes a
combined objective and subjective approach0 6 On the basis of
similar reasoning it might be asserted that the apparent acceptance
of the reliability rationale by the Supreme Court of Canada implies
a subjective view.!7
Must the inducement relate to the charge in the prosecution of
which the confession so obtained is sought to be adduced? In Com-
missioners of Customs and Excise v. Harz and Power the House of
Lords answered .this question in the negative. The facts were these:
the defendants were being investigated by Customs officers for
defrauding the plaintiff of purchase tax. Upon Harz’s refusal to
answer questions, he was told by the interrogating officers that he
could and would be prosecuted for failing to answer, and his
solicitor mistakenly believed this to be the case. Harz answered
the questions and it was the admissibility of the statements so made
that was in issue before the House. Lord Reid, with whom the
other members of the Bench agreed, held that there was no solid
authority for the assertion that if the promise or threat did not
relate to the charge the statement induced is admissible. In pointing
out that the alleged rule is also unreasonable and illogical, his
Lordship presented a hypothetical case to show that an inducement
not relating to the charge may in some circumstances be more
powerful and more likely to lead to an untrue confession.
The writer is unaware of either Canadian or Australian authority
decided since Harz and Power where this issue was raised and
which might indicate, albeit sub silentio, that the point is con-
sidered as determined in that case. The view has been advanced that
though the Canadian courts have not really discussed the issue, they
have not limited the doctrine to inducements relating to the prosecu-
tion! 8 Few would deny that trustworthiness is at least one under-
lying policy basis of the confession rule. Though inducements relat-
ing to the prosecution may be the most effective, it is consistent
with the reliability rationale that other types of inducement not be
excluded from the ambit of the confession rule.
66 See the dictum of Dixon J. in McDermott v. The King, supra, note 18,
511, quoted at note 22, supra.
V Cf. R. v. Muise (1975) 21 C.C.C.
supporting R. v. Fitton, supra, note 15.
(2d) 487, 494 (N.S.SC., App. Div.),
O8Schiff, Evidence in the Litigation Process (1978), Vol. 2, 871; see also
McWilliams, Canadian Criminal Evidence (1974), 252 and authorities cited
therein.
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
449
The inducement need not relate to the charge or, for that matter,
to the accused himself. In R. v. Middleton69 the accused was arrested
for burglary. He had stored the allegedly stolen goods at the home
of a long-time friend. The police, knowing this, told their suspect
that unless he confessed his friend would be arrested and her
children put up for foster placement. In holding the confession so
obtained inadmissible, Edmund-Davies L.J. (as he then was), speak-
ing for the Court of Appeal, stated that the more remote the person
involved in the inducement from the suspect, the more difficult
it may be to establish that the confession was vitiated, though that
is a consideration going to the weight of the evidence that a
threat was made. The Lord Justice added that it does not go to the
admissibility of the confession if it is established that the threat was
actually made. The issue then appears to be one of fact. The writer
knows of no authority that it is otherwise in Australia. In Canada
R. v. Jackson would support the view that a promise relating to a
person other than the accused will only vitiate a confession so
induced if, in the circumstances, the promise would tend to induce
an untrue statement. 70 This offers another example of the Canadian
tendency to limit the rule to that which is deemed to be its exclusive
underlying policy –
the guarantee of reliability. An adherence to
the rule alone or to the right to silence would demand that the
judgment in Jackson hold that the promise relating to a third
party would only vitiate the confession if it would tend to induce a
statement that would not otherwise have been made.
Once an inducement has been made by a person in authority, it
may or may not vitiate any statement made thereafter by the suspect,
depending on whether the inducement is still operative. In R. v.
Smith71 the accused, a soldier, was charged with the stabbing
murder of another military man in the course of a fight. Imme-
diately after the fatal brawl the regimental sergeant-major put the
whole company on parade with the stated intention of keeping
them there until he learned who had been involved in the incident.
As a result of this the accused made a statement that was eventually
held inadmissible at trial. On the next day, the accused repeated
his confession to a special investigator who had referred to the
accused’s original statement. In considering the admissibility of
this second confession, Lord Parker C.J., speaking for the Court
Martial Appeal Court, stated that the principle to be deduced from
the case law is
09 [1974] Q.B. 191 (C.C.A.).
70 (1977) 34 C.C.C. (2d) 35, 38 (B.C.C.A.).
71 [1959] 2 Q.B. 35 (C.M.A.C.).
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that if the threat or promise under which the first statement was made
still persists when the second statement is made then it is inadmissible.
Only if the time limit between the two statements, the circumstances
existing at the time and the cautions are such that it can be said that
the original threat or inducement has been dissipated, can the second
statement be admitted as a voluntary statement.7 2
On the facts his Lordship felt that, although the investigator hoped
to get a continuing confession by referring to the first, the effect
of any original inducement or threat under which the first statement
was made had been dissipated; nine hours had passed, the parade
had ended and two cautions had been given. Smith has been distin-
guished on the point that a promise will be harder to dissipate than
a threat.73 The judgment has also been cited with approval by the
Privy Council: 4 The principles enunciated in Smith apply in Cana-
da75 as well as Australia.” Obviously, in the final analysis, the issue
is one of fact.
If it is the suspect who initiates the inducement it would appear
that any statement made will be vitiated if the person in authority
has assented to or adopted the inducement. In R. v. Zaveckas77
the suspect, while under arrest for larceny, asked a policeman if he
would get bail if he made a statement, to which the policeman
answered yes. The confession made as a result of this was held
inadmissible, it making no difference that the person in authority
only assented to a suggestion made by the accused himself. There
was no distinction to be made with the converse situation, where
the policeman might have said, “If you make a statement you will
get bail”. In this light, Zaveckas is not a hard case on its facts and
as such the House of Lords did not disapprove it in Ping Lin, despite
citing it as an instance of a judgment that hindered legitimate police
practices.78
In the latter case the accused was apprehended for
smoking heroin and charged with conspiracy to supply a controlled
drug. Upon interrogation he maintained that he smoked heroin
but did not sell it. The accused attempted to buy leniency by
offering the names of important dealers, a bargain refused by the
police. Eventually the accused admitted his trafficking activities
but persisted in trying to strike a bargain. Finally, after the
72 Ibid., 41.
73R. v. Williams (1968) 52 Cr. App. R. 439 (Central Crim. Ct).
74 See Sparks v. The Queen [1964] A.C. 964, 988 (P.C.).
75 See Horvath v. The Queen, supra, note 16, 33 et seq.
76 See Pascoe v. Little (1978) 24 A.L.R. (A.C.T.R.) 21 (S.C.); R. v. Plotzki
[1972] Qd R. 379 (C.C.A.); R v. Clark [1970] 1 N.S.W.L.R. 589 (C.C.A.).
77 [1970] 1 All E.R. 413 (C.CA.).
7 8Supra, note 2, 594 per Lord Morris of Borth-y-Gest, 602 per Lord Hailsham.
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
451
accused had admitted selling heroin, the interrogating officer ex-
pressed the view, in response to the accused’s continued efforts
to negotiate leniency, that if Ping Lin supplied information on
important drug retailers, the judge would surely bear it in mind
when passing sentence; but again the police officer refused to make
any explicit deals. The issue as to whether or not the Ibrahim rule
has been contravened, albeit by an inducement initiated by the ac-
cused, is a question of fact. The House so ruled in Ping Lin, holding
that the trial judge had been entitled to find the accused’s statement
voluntary. However, it is submitted that the principle of Zaveckas
is not overruled by Ping Lin, regardless of one’s opinion of the
holding on the facts in the latter. If one does not view the police-
man’s comment concerning sentence as an inducement, in that the
actual words, combined with the cautions given and repeated
refusals to make any deals, did not constitute an assent to the
suspect’s suggestion, then that ends the matter. On the other hand,
even if what the policeman said is construed as an inducement, one
can simply argue on the facts (as did three of the Law Lords7″).
that the actual confession of Ping Lin’s guilt was made before any
inducement was made. After the inducement, he simply filled in
details and named his supplier.
It appears that this issue, being essentially one of fact, is not
treated differently in the other jurisdictions. In New South Wales,
at least, it appears that where the accused attempts to strike a
bargain, any statement will not be vitiated if the police make
their position of providing no guarantees clear to the suspect or
dissipate the effect of any inducement (i.e., their consent to the
accused’s suggestion) by a firm and clear caution. s0
Where a suspect is “tricked” into confessing by a person in
authority the issue of admissibility will again be one of fact to
be decided in individual cases by applying the Ibrahim rule. There
are Canadian cases which set out a principle to the effect that a
confession extracted by means of police subterfuge will only run
afoul of the Ibrahim rule where the trick conveys hope of advantage
or fear of prejudice.”‘ It is submitted that these holdings do not
really advance the state of the law more than particularizing the
application of the Ibrahim rule to a certain category of fact pattern.
‘7 Ibid., 601 per Lord Hailsman, 605 per Lord Kilbrandon, 607 per Lord
Salmon.
80 E.g., R. v. Clark, supra, note 76.
81R. v. Materi & Cherville [1977] 2 W.W.R. 728 (B.C.C.A.); R. v. Robinson
(1975) 21 C.C.C. 2d 385 (Ont. C.A.), leave to appeal refused [1975] 1 S.C.R. xi;
R. v. McLeod (1968) 5 C.R.N.S. 101 (Ont. C.A.).
McGILL LAW JOURNAL
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It has also been held that any fear aroused by a detective’s false
statement that the victim will be able to identify his attacker is
not caught by the Ibrahim rule, since that rule is concerned with
fear of reprisal for failing to speak and not a fear of being caught
or identified.8 2 The Canadian refusal to embrace the rationale of
controlling police conduct may offer an explanation for these
decisions. It should also be remembered that these Canadian judg-
ments are unfettered by considerations of fairness to the accused,
as would probably be the case before an Australian court. However,
it has been asserted that there are few Australian cases where con-
fessions made pursuant to untrue representations were excluded
on discretionary grounds, despite Dixon J.’s dictum in McDermott83
to the effect that a police trick is an important factor in the court’s
consideration of discretionary exclusion. 4 In New South Wales,
an untrue representation made by a person in authority will by
virtue of section 410 of the Crimes Act, 1900 vitiate a confession
obtained as a consequence thereof. However, the section operates
only in respect of crimes already committed, so that statements
which themselves constitute the crime (e.g., conspiracy) will not
be excluded by operation of the disposition, although they were
made as a consequence of police trickery.8 5
Such cases as Northam may have indicated a per se approach
by the Court of Appeal in the sense that once an inducement is held
out it will vitiate any statement made, regardless of the lack of a
causal link between the two.8 6 Such a bent clearly must be contrary
to Ibrahim on the very wording of the rule. Furthermore, the tone
of the judgment of the House of Lords in Ping Lin, as well as certain
turns of phrase employed therein, 7 would suggest that there must
be a causal link between the inducement and the confession. It will
also be remembered that Lords Hailsham, Kilbrandon and Salmon
felt that on the facts any inducement occurred after the confession
had been made and thus could not have caused it. There appears
nothing to suggest that the law is otherwise in Australia and there
are Canadian cases holding that the existence of an inducement is
in itself insufficient to vitiate a confession; it must cause the making
82 Alward and Mooney v. The Queen, supra, note 47.
83 Quoted in text at note 22, supra.
84 See Waight, Comment [1979] Crim. L.J. 156.
85R. v. G., F. & W. [1974] 1 N.S.W.L.R. 31 (C.C.A.).
86 See Prentice, supra, note 63.
87 See supra, note 2, 607 where Lord Salmon refers to the ultimate issue
in the following terms: “was the confession or statement procured by the
express or implicit threat, promise or inducement?” See also Lord Hailsham,
ibid., 602.
1981) RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
453
of the statement.8 8 The issue of causation may often be confounded
with the question of whether or not there was something that could
have been an inducement; it is this confusion which may have led
to doubts in such cases as Northam, as to whether causation is a
requirement.
Finally, what is the role played by the accused’s state of mind
at the time the statement was made, and how does this affect the
admissibility of the confession? If the test of voluntariness is at
least partially subjective, this criterion must be relevant even if
the accused’s state of mind existed independently of the behaviour
of persons in authority. Also, as Cross points out, if a rationale of
the confession rule is trustworthiness of the statement then the
state of mind of the accused will be relevant in determining whether
it is safe to act upon the statement. 9 However, that depends upon
what one means by state of mind. If a suspect’s disposition is such
that he is more likely to make a statement then his state of mind
would be relevant to the determination of whether any inducement
exercised by a person in authority caused him to make a statement.
If his state of mind is such that he is no more liable to speak than
under “normal” conditions, but what he says is untrustworthy (e.g.,
because he is under the effects of an hallucinogen), then the con-
siderations evoked would seem to bear not on the applicability
of the confession rule, but on the weight attributable to the state-
ment once given. (This is not to say, however, that the judge sitting
on the voir dire should not exclude such a statement on the basis
of his discretion especially where its probative value is trifling in
relation to its prejudicial effect, or simply on the basis that the
statement is so unreliable that it would not be safe to admit it.) If
the above two hypotheses are combined (which is probably the
likelihood of their occurrence in fact) then both considerations
become relevant, but at different times, that is, at the voir dire and
trial proper respectively. It should be underlined that in relation to
the first hypothesis there must be an inducement, however slight,
held out by a person in authority. If that is not the case then any
exclusion of a statement based on considerations of trustworthiness
would not be based on an application of the confession rule as such
since the required inducement is absent. Rather, exclusion would be
based on considerations of reliability independent of the confession
rule. That is to say that, since the confession is unreliable, it is
excluded because it offends the rationale of the rule (though not
88R. v. Saglioco [1978] 3 W.W.R. 193, 200 (B.C.C.A.); R. v. Frank (1969) 8
C.R.N.S. 108, 113
(B.C.C.A.).
89Evidence, 5th ed. (1979), 545.
McGILL LAW JOURNAL
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the rule itself), and thus it would be unsafe to admit. In order to
offend the rule itself, the utterance of the statement must be
connected to the inducement, though the unreliability might exist
independently. The judge, if he is to apply the rule and not the
rationale, must reason that because of something said or done by a
person in authority to this accused whose state of mind was such that
he easily succumbed to the inducement, the statement is unreliable.
As suggested above, the second type of case (i.e., where because of
the accused’s state of mind his statement is unreliable though not
made as the result of an inducement) should be the proper subject
for exclusion on the basis of discretion. It is asserted that this is
the proper approach. It is submitted that Cross’s view appears to
conflate the application of the confession rule with the application
of its rationale. It is now proposed to examine the case law by
means of this analytic framework.
In England, there has been an obiter dictum in the Court of
Appeal to support the above distinction. In R. v. Isequilla, Lord
Widgery C.S. spoke of the situation where a
suspect’s mental state is such that he is deprived of the capacity to
make a free choice whether to confess or not then any confession which
he makes is necessarily not a voluntary confession because it was not
supported by the capacity to make a voluntary choice. 0
Presumably, the existence of an inducement held out by a person in
authority would also be required. If there was no inducement but
the suspect’s mental disability was so severe, and his ability to
comprehend and answer questions so lacking that the probative
value of any admissions would be small compared to their pre-
judicial effect such as to make it unfair to admit the statements,
they would be excluded. That was the situation in R. v. Stewart0 ‘
where medical witnesses testified that the mental age of the accused
was between three and five years. It is of note, however, that it was
conceded in Stewart that there was no inducement and as such the
case must be viewed as an example of the second hypothesis out-
lined above. An obiter dictum in the Court of Appeal and a trial
judgment may not be the strongest authority, but one hopes that
this is the state of the law on this matter in England, as it is con-
sistent with the hypotheses outlined above, which conform to the
Ibrahim rule and save the confession rule from confusion with one
of its rationales. These hypotheses also maintain the trial judge’s
discretion to ensure fairness and to exclude statements which,
90 [19751 1 All E.R. 77, 82.
91 (1972) 56 Cr. App. R. 272 (Central Crim. Ct); see also R. v. Kilner [1976]
Crim. L.R. 740 (Kent Crown Ct).
1981J RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
455
though not strictly offensive to the rule, offend one of the rationales
for it.
In, Australia there is fairly recent authority affirming the prin-
ciple set out in Sinclair v. The King, 2 that the accused’s state of
mind give rise to two separate matters, that is, the ease with
which the suspect succumbs to inducements and the weight or
trustworthiness of what he says.93 The latter can give rise to
discretionary exclusion by the trial judge or at least a direction
to the jury as to the weight attributable to the statement in view
of the accused’s state of mind. When one recalls that the Australian
courts have accepted a wide policy basis for the rule, and that there
are various policy-oriented criteria upon which the exclusionary
discretion can be exercised (e.g., reprehensible police subterfuge,
unreliability, etc.), it becomes quite plausible that the trial judge’s
discretion has been developed along the lines stemming from the
various rationales in order to exclude statements not caught by the
rule itself. In Jackson v. The Queen4 the High Court quashed a
conviction where a judge refused to allow psychiatric evidence at
trial going to the weight of a confession which had been admitted.
The case also seems to hold, if only sub silentio, that the same
psychiatric evidence had been admissible at the voir dire as going
to the involuntariness of the confession. As such it seems that the
Court had in mind that the accused’s state of mind could go to the
trustworthiness of his statement as well as to its voluntariness.
The Supreme Court of Canada recently considered this issue in
Ward v. The Queen,95 a case concerning the admissibility of a sus-
pect’s statement made shortly after regaining consciousness follow-
ing an automobile accident. Much evidence was adduced at trial
as to Ward’s state of mind at the time of making the statements,
and to the effect that he was still in a state of shock when he spoke
to the police. Spence J., speaking for the Court, felt that the de-
termination of voluntariness of a statement remained to be made
although no inducement had been held out by a person in autho-
rity. His Lordship held that it was relevant for a trial judge to con-
sider the accused’s state of mind in determining the voluntariness
of the impugned statement, with regard both to the issue of
whether a person in the suspect’s condition would be more sus-
92 (1946) 73 C.L.R. 316 (Aust. H.C.).
93 E.g., R. v. Starecki [1960] V.L.R. 141 (S.C. in banco); R. v. Ostojic (1978)
18 S.A.S.R. 188 (S.C. in banco).
t4 (1962) 36 A.L.R. 198 (Aust. H.C.).
S5 (1974) 44 C.C.C. (2d) 498; see also Nagotcha v. The Queen [1980] 1 S.C.R.
McGILL LAW JOURNAL
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ceptible to an inducement than someone in a normal state, and to
whether “the words could really be found to be the utterances of
an operating mind”.96 It is submitted that the judgment would be
more coherent had his Lordship added that this latter aspect of
his test would lead to exclusion of the statement because a con-
fessional statement not made by an “operating mind” could not
have sufficient probative value to outweigh its prejudicial effect.
Instead, Spence J. confirmed the trial judge’s approach saying that
the latter had properly considered admissibility and not probative
value. It is certainly true that the former is the subject of de-
termination on the voir dire. However, it is respectfully submitted
that the latter is also relevant to that determination, especially in
the context of the discretion to exclude as articulated by the Supreme
Court in Wray. Despite this critique, it does seem that the position
taken in Ward resembles that taken by the English and Australian
courts. However, there is still a conceptual problem in Ward, stem-
ming, it seems, from the apparent adoption by the Supreme Court
of the reliability rationale as the sole policy basis underlying the
confession rule, and from the Court’s refusal to recognize a wide
exclusionary discretion in the trial judge. The unreliability of Ward’s
statement militated in favour of exclusion, but it does not appear
from the report that there was any inducement made by a person
in authority. Thus, the statement could not be caught by the Ibrahim
rule. It is this conceptual bind that makes the judgment in Ward
awkward. Embracing the reliability rationale alone, coupled with a
reluctance to exclude on the basis of a judicial discretion, leads to
the inference that the Supreme Court in Ward has taken yet a
further step beyond the formulation of the confession rule which
it approved in Alward. Indeed, it appears from Ward that the re-
quirement of an inducement may have been eliminated.9 This can
be shown not only from the holding but from Spence J.’s comment
that
the examination of whether there was any hope of advancement or fear
of prejudice moving the accused to make the statements is simply an
investigation of whether the statements were ‘freely and voluntarily
made’ 97
It must be that Ward implicitly eliminates the criterion of induce-
ment, or at least makes it optional, unless the judgment is taken as
authority for the exclusion of statements which offend the reliability
rationale. Such a view demands an acceptance of a judicial discre-
96 Ibid., 506.
96a See R. v. Sabean (1980) 35 N.S.R. (2d) 35, 43 (N.S.S.C., App. Div.).
9 7 Supra, note 95, 506.
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
457
tion to exclude, and could only be consistent with the judicial
discretion outlined in Wray if one regards Ward’s statement as
having been excluded because its prejudicial effect outweighed its
probative value because of the accused’s state of mind; and this,
in turn, could only be the case if his mental state was such that
what he said was unreliable. It could not be so if he were more
likely to speak than under “normal” conditions, though the state-
ment made was reliable.
IV. Person in authority
There does not appear to be any comprehensive definition of
the term “person in authority” that has been accepted by the
courts.” Cross suggests that it is
anyone whom the prisoner might reasonably suppose to be capable of
influencing the course of the prosecution, and there is nothing in the
decided cases to suggest that this is incorrect. 99
The Privy Council in Deokinanan v. The Queen10 cited with approval
a dictum of Bain J. in R. v. Todd,10′ which proposed the following
definition:
A person in authority means, generally speaking, anyone who has
authority or control over the accused or over the proceedings or pro-
secution against him.102
Other definitions have -been proposed but, it is submitted, that
those cited above reflect the general tenor of the test that has
influenced
in deciding whether or not any given
individual is, on the facts, a person in authority. 0 3
the courts
With the judgment of the House of Lords in Harz and Power
to the effect that the inducement (or at least the threat) need not
relate to the prosecution, the issue presented itself as to whether
the requirement that the inducement be exercised by a person in
authority was thereby done away with. The Privy Council considered
this in Deokinanan, recognizing that an inducement held out by a
person not in authority could equally cause an untrue confession. 0 4
98 See R. v. Wilson [1967] 2 Q.B. 406, 415 (C.A.) per Lord Parker C.J.; R. v.
Parnerkar (No. 2) (1974) 17 C.C.C. (2d) 113, 126 (Sask. C.A.) per Culliton
C.J.S.
99 Supra, note 89, 541.
100 [1969] 1 A.C. 20.
101 (1901) 13 Man. R. 364, 376 (C.A.).
102 Supra, note 100, 33.
103 See also Kaufman, The Admissibility of Confessions, 3rd ed. (1979), 81:
a person with a “degree of power” over the accused who “could either make
good his promise or carry out his threats”.
104 Supra, note 100, 33.
McGILL LAW JOURNAL
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Despite any logical inconsistency, their Lordships would not strike
down the requirement in the present state of the law that the
inducement be exercised by a person
in authority. Though
the point was not expressly considered, it should be recalled
that the House of Lords’ unequivocal statement of the confession
rule in Ping Lin included the person-in-authority requirement.
That the English courts have upheld the requirement in face of the
seemingly logical inconsistency adds strength to the view that con-
trol of improper police conduct may also be a consideration under-
lying the confession rule. Indeed the person-in-authority element
is only illogical if reliability is the only rationale for the rule. It
is noteworthy that the Criminal Law Revision Committee, which
favours the reliability rationale, recommended that the person-in-
authority criterion be abolished since an inducement made by
anyone is likely to cause an untrustworthy confession. 10 5
With one exception, there appears to be no recent authority
to indicate that the requirement of the person in authority has
been modified by the courts in the other jurisdictions. The Law
Reform Commission of Canada would retain the criterion0″ but one
wonders if the Canadian Supreme Court, which embraces the re-
liability rationale, might move towards the elimination of the person-
in-authority concept. The exception is the judgment of the Court of
Criminal Appeal of New South Wales in R. v. Attard.10 7 Attard was
tried for murder with two co-accused, K. and M. While in detention,
the three suspects assembled with two other individuals and jointly
completed a record of interview which exonerated K. but which
was highly incriminatory for the appellant Attard. At the joint
trial, K. produced the record of interview, over objection from
Attard’s counsel. It was agreed that all persons who took part in
compiling the record of interview were not persons in authority.
Nevertheless, the Court of Criminal Appeal held that the statement
had wrongly been adduced at trial, as it had not been shown to:
have been made voluntarily. Walsh J.A., speaking for the Court on
this point,’10 8 felt that the general rule is that a confessional state-
ment which is not shown to be voluntary is excluded, and that the
exclusion of involuntary statements induced by persons in authority
is only a particular (and typical) instance of this general rule.
His Lordship unequivocally stated on the basis of the High Court
decisions in Cornelius,0 9 McDermott and Lee that
105 Supra, note 10, 58.
106 Supra, note 19, 62.
107 [1970] N.S.W.R. 750.
108 Ibid., 756.
10 9 Cornelius v. The King (1936) 55 C.L.R. 235 (Aust. H.C.).
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
459
the rule -against the admission of involuntary statements is not confined
to statements made as a result of threats or inducements by a person
in authority.110
Without entering into detail, there may be implications in some of
the dicta in the three High Court judgments relied on by Walsh
J.A. to the effect that the prime criterion for admissibility is
voluntariness. However, on their facts, all those cases dealt with
statements made to persons in authority, and nowhere did the High
Court explicitly advocate abolition of that criterion. R. v. Attard
might be viewed as direction to trial judges to exclude involuntary
statements, albeit not made to persons in authority, in exercise of
their general discretion to exclude evidence so as to guarantee a
fair trial. However, it is difficult to ignore Walsh J.A.’s clear ex-
pression that the rule, at least in New South Wales, does not re-
quire that the inducement be exercised by a person in authority.
In determining whether a given individual is a person in autho-
rity, is the test subjective or objective? It is submitted that the test
in England must at least have a subjective element, since the courts
have held that a detective posing as a fellow prisoner is not a
person in authority.”- However, there does not appear to be much
judicial discussion directly on point, apparently because such police
trickery is usually analyzed from the perspective of a violation of
the Judges’ Rules. However, the point has arisen in R. v. Wilson,”-2
where it was held by the Court of Appeal that the owner of stolen
property (as well as the house from which it was stolen), who was
known to be such by the suspect, was a person in authority even
though he had no actual power to stultify a prosecution.
The approach to police ruses by an equivalent to the Judges’
Rules may also be the reason for the lack of abundant Australian
authority addressing this question, though there is a judgment
holding that a potential private prosecutor for perjury is a person
in authority.113 However, it could not be concluded *on the basis of
this view that the test is purely subjective, since, unlike the victim
in R. v. Wilson, the private prosecutor did in fact have the power
to stultify the prosecution. It should be mentioned that there is an
obiter dictum indicating that where an accused considers a prison
psychiatrist examining him on behalf of the Crown to be a person
in authority, the latter will be held so to be.114
110 Supra, note 107, 756.
111 R. v. Stewart [1970] 1 All E.R. 689 (C.C.A.); see also R. v. Keeton (1970)
(C.C.A.), where the police listened to the accused’s
54 Cr. App. R. 267
telephone conversation.
11 Supra, note 98.
113 Gouldham v. Sharrett [1966] W.A.R. 129 (S.C. in banco).
114R. v. McNamara [1963] V.R. 402 (S.C. in banco).
McGILL LAW JOURNAL
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In Canada, where the Judges’ Rules do not apply, the courts
have squarely decided that a person in authority is to be identified
subjectively from the point of view of the accused, and thus a
police officer posing as a criminal is not a person in authority. 11
It has been held improper not to hold a voir dire to determine this
issue where the impugned statement was made to a doctor treating
the victim-“‘ or to a phony bondsman whom the accused may have
thought had the power to return him to jail.” 7 Similarly, the owner
of stolen property, having the power to lay an information is a
person in authority,”” as is the victim of a crime where she was
used by police as their agent to extract a confession.”10 The Canadian
option for the subjective approach might be a result of the embrace
by Canadian courts of the reliability rationale or, more accurately,
the rejection of the policy ground of controlling police misconduct,
in the sense that a policeman posing as, for example, a cellmate of
the accused will not be held to be a person in authority. (However,
this same subjective view may well regard a victim, for example,
as a person in authority, though objectively he is not.) It should
also be noted that not only do the Canadian courts not vigorously
apply the Judges’ Rules, but they also have no discretion to exclude
evidence solely because it was obtained by police conduct liable to
bring the administration of justice into disrepute. 0 If the accept-
ance of the subjective approach in Canada has its background in the
acceptance of the reliability rationale (and the rejection of the
control of police conduct rationale), then one should recall the
arguments considered in Deokinanan and accepted by the Criminal
Law Revision Committee that an inducement by a person not in
authority also makes the confession obtained unreliable. Unlike
England and Australia, where the Judges’ Rules are applied, the
approach may promote problems, if not bad law, where a police
subterfuge is particularly reprehensible. Such was the problem in
R. v. Pettipiece,’2 ‘ where the Court voiced its disdain for the police
stratagem of feigning a bail hearing, presided over by a fake
115R. v. Towler (1965) 65″ W.W.R. 549, 553 (B.C.C.A.). See also Kaufman,
supra, note 103, 81 et seq.; Perras v. The Queen [1974] S.C.R. 659, 664 per
Spence J., dissenting (Laskin J. concurring), 663 per Ritchie J. dissenting; R.
v. Rothman (1979) 42 C.C.C. (2d) 377 (Ont. C.A.), afj’d S.C.C. (2 March 1981)
[see “Postcript”, infra, p. 503].
118 R. v. Postman (1977) 3 Alta L.R. (2d) 524 (S.C., App. Div.).
117R. v. Pettipiece (1972) 18 C.R.N.S. 236, 241 (B.C.C.A.) per Branca JA.
“BRimmer v. The Queen (1969) 7 C.R.N.S. 361 (B.C.C.A.).
119 R. v. Downey (1977) 32 C.C.C. (2d) 511 (N.S.S.C., App. Div.).
12o See R. v. Wray, supra, note 43.
2 1 Supra, note 117.
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
461
magistrate, where the accused was released into the custody of a
phony bail bondsman. However, because it held that the accused
might have considered the bail bondsman as a person in authority,
the Court was able to allow the appeal on traditional grounds.122
Psychiatric examination at some point in criminal proceedings
for one reason or another is not unlikely. Though on the subjective
approach it will depend on the circumstances of each case whether
the psychiatrist is a person in authority, it is submitted that in
situations where the psychiatrist is appointed by the court and con-
ducts the examination while the accused is in custody, courts should
always hold a voir dire to determine the issue. This appears to be
the view in the State of Victoria.2 3
While there does not appear to be any recent authority directly
on point in England, the Supreme Court of Canada has held that
where a psychiatrist is called by the Crown as an expert witness
without the intention of adducing through him the accused’s actual
statement, there is no need to hold a voir dire, even though the
accused’s statements made to the psychiatrist might be elicited in
cross-examination. 12 4 The Court did, however, indicate in an obiter
dictum that it would not be correct to cite one of its earlier de-
cisions as authority for the view that a psychiatrist is never a person
in authority.12 5 In that latter case the Court held that a psychiatrist
acting for the court in proceedings to declare the accused a dan-
gerous sexual offender’2 6 was not a person in authority, since he
would have no control over the proceedings, as would persons
concerned with the apprehension or prosecution of criminals and
because the proceedings themselves were not directed to conviction
for an offence, but to the determination of a type of sentence.
It is not absolutely essential that the inducement be made by
the person in authority himself. In R. v. Cleary27 the accused’s
father told him at the police station, in the presence of two detectives,
to tell the police everything, and that if he (the accused) had not
hit the victim he could not be hanged. The Court of Appeal held that
the statement was an inducement and that
122For further discussion, see Ratushny, Statements by trickery: How far
will they go? (1972) 18 C.R.N.S. 257.
123 See R. v. McNamara, supra, note 114.
124 Perras v. The Queen, supra, note 115, 662; see also Vaillancourt v. The
Queen (No. 2) (1975) 31 C.R.N.S. 81 (Ont. C.A.), atf’d (1975) 31 C.R.N.S. 93
(S.C.C.).
125Wilband v. The Queen [1967] S.C.R. 14.
126 Pursuant to the Criminal Code, S.C. 1953-54, c. 51, s. 661 (Now R.S.C.
1970, c. C-34, s. 689).
127 Supra, note 35.
McGILL LAW JOURNAL
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though the inducement be made by a person not in authority, the
position is the same as if they had made it themselves unless they take
steps to dissent from it.128
The law is probably the same in the other two jurisdictions. 2 ‘
The final issue to be dealt with at this stage is the propriety
of the conduct of the person in authority. Needless to say, if the
conduct of a person in authority is improper and amounts to an
inducement, that ends the matter: any confession obtained will be
vitiated under the Ibrahim rule. But what if the person in authority
induces the confession without conducting himself improperly?
The two detectives in Cleary simply stood by while the accused’s
father made the inducement. 130 In R. v. Isequilla 13
the police were
tipped off to an impending bank robbery. As the accused and his
accomplice (who subsequently escaped) drove up to the bank, one
of the waiting policemen jumped into the car, hand-cuffing the
accused while his partner approached from the other side with
pistol drawn. The accused confessed upon interrogation but it was
found as a fact that from the time of his dramatic apprehension
he was in a severe state of hysteria. In dismissing the appeal from
conviction, Lord Widgery C.]., speaking for the Court, rejected
counsel’s contention that a confession may still be inadmissible
even though the words or conduct of the person in authority were
not directed to obtaining a confession. His Lordship held that the
rejection of a confession is always related to the improper or
unjustified conduct of a person in authority. This, it is submitted,
is no longer the law. With its steadfast adherence to the Ibrahim
rule, the House of Lords in Ping Lin 2 expressly decided that im-
propriety in the conduct of a person in authority is irrelevant,
though their Lordships did not overrule the actual decision
in
Isequilla. Lords Morris and Hailsham felt that the Ibrahim rule,
when applied to the facts, was quite sufficient to determine volun-
tariness,’1 while Lords Kilbrandon and Salmon added that the
proposed criterion was redundant, since it is difficult to imagine
a confession induced by proper means.’ 4 It will be remembered
that the House refused to enter the rationale debate in Ping Lin.
128Ibid., 119; see also R. v. Moore (1972) 56 Cr. App. R. 373 (C.C.A.).
129 In Canada see R. v. Letendre (1976) 25 C.C.C. (2d) 180, 185 (Man. C.A.),
where Cleary would seem to have been adopted. In Australia see R. v.
Bodsworth [1968] 2 N.S.W.R. 132
(C.C.A.).
130 See supra, note 35, 121.
131 Supra, note 90.
132 Supra, note 2.
133 Ibid., 594 per Lord Morris of Borth-y-Gest, 602 per Lord Hailsham.
‘- Ibid., 604 per Lord Kilbrandon, 606-7 per Lord Salmon.
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
463
One wonders if their Lordships, by holding irrelevant considera-
tions of police impropriety, were covertly directing the law away
from the use of the rule as a disciplinary measure of police conduct.
Or perhaps the House wished to avoid a future issue of discre-
tionary exclusion where a confession passed the Ibrahim test, even
though obtained by means of unconscionable police conduct.
In Australia, impropriety of police conduct is most relevant to
the trial judge’s exclusionary discretion. This has been clear for
many years since Dixon J. in McDermott stated that the judge
should form a judgment upon the propriety of the means by which
the statement was obtained by reviewing all the circumstances and con-
sidering the fairness of the use made by the police of their position
in relation to the accused.’3 5
It has been remarked that despite Dixon J.’s dictum there are few
cases in Australia where confessions made pursuant to untrue re-
presentations have been excluded on discretionary grounds. 6
Recent decisions however may denote a reversal of that trend. In
New South Wales any confession induced by an untrue representa-
tion is inadmissible.’ 3 ‘
In Canada the Supreme Court has held in Wray that there is
no foundation in law for a trial judge to exclude evidence on the
basis of police conduct that is capable of bringing the administra-
tion of justice into disrepute. It will be recalled that in Pettipiece3 8
the British Columbia Court of Appeal decided the issue on tradi-
tional grounds, though they strongly disapproved of the conduct
in question. It is submitted that this bit of Canadian law is another
instance of the rejection of the disciplinary principle, whereas
Australia is consistent with its recognition of the wider policy
basis by holding police conduct relevant to the admissibility of
confessions.
V. Statements to which the confession rule applies
A confession is a type of admission, and as such it is tendered in
evidence as an exception to the hearsay rule. This is an additional
reason for not confusing confessions with illegally obtained (real)
evidence. As hearsay exceptions it appears reasonable that state-
ments within the confession rule should be assertive statements
that are adverse to their maker’s case, adduced as proof of the truth
of their contents.
135 Supra, note 18, 513.
13 6 See the authorities cited by Waight, supra, note 84.
’37 Pursuant to the Crimes Act 1900, s. 410.
13 8Supra, note 117.
McGILL LAW JOURNAL
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A confession must above all be a statement. Not only can the
accused’s words be a statement but so can his conduct in so far as
it is assertive. Thus, where evidence of the accused’s behaviour
is adduced to show, for example, his consciousness of guilt, but not
to show his response to a question or adoption of a statement
through conduct, the confession rule should not apply.13 9 However,
where the accused is induced by the police into being the actor in
a filmed reconstruction of his crime, the confession rule will apply
as if the statement were oral.140
Statements made in the presence of the accused may become
his confession on the basis of the same considerations that simple
admissions (i.e., not made to persons in authority) may be adopt-
ed.141 However, it appears that the courts will be less likely (than
in the case of simple admissions) to impute adoption of another’s
statement to a suspect on the basis of mere silence when the trans-
action occurs in the presence of a person in authority.42
An out-of-court statement made by an accused can certainly
be adverse to his case without being a full and complete confession
of his guilt. Thus, it is hardly surprising that when the issue was
raised in Harz and Power, the House of Lords held that the Ibrahim
rule applies equally to confessions and admissions which fall short
of a full confession.””
It would appear that an out-of-court statement by the accused
that contains nothing adverse to his case could not be adduced as
proof of its contents. The accused cannot adduce it as such, for to
do so is obnoxious to the rule against narrative or self-serving
statements. For the prosecution the statement, at least on its face,
is not an admission and as such could not be adduced as proof of
its truth under an exception to the hearsay rule, assuming that the
Crown would wish to lead it in the first place. Nevertheless, it was
such a situation that came before the Supreme Court of Canada in
Pichg v. The Queen.’44 The accused, while under arrest for the
murder of her common law husband, told the police that on the
night of his death she was at her mother’s house. However, upon
taking the stand at trial she told a different story, testifying that
13 9 See Woon v. The Queen (1964) 109 C.L.R. 529 (Aust. H.C.); R. v. Starr
[1969] Q.W.N. 23 n. (S.C.).
140 See R. v. Lowlery (No. 1) [1972] V.R. 554 (S.C.).
141 See Barca v. The Queen (1975) 7 A.L.R. 78 (Aust. H.C.); see also R. v. Eden
[1970] 2 O.R. 161 (CA.).
142 E.g., R. v. Eden, supra, note 141.
’14 Supra, note 4, 817-8 per Lord Reid.
14 Supra, note 14.
1981) RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
465
she had shot her concubine, but by accident. Counsel for the Crown
then sought to adduce the previous statement, but the judge, after
conducting a voir dire, held that it was involuntary; accordingly,
he refused to receive it in evidence. The question presented to the
Supreme Court was whether the confession rule applies to excul-
patory as well as inculpatory statements made by the accused to
persons in authority. In sustaining the trial judge, Hall J., speaking
for the majority, found that there is no authority for distinguishing
between inculpatory and exculpatory statements. Judson J., dissent-
ing, disagreed with Hall J.’s view of the authorities, and pointed
out that, though Lord Sumner’s locus classicus employs the word
“statement”, the facts of Ibrahim show that he was speaking of
incriminating statements. Judson J. went on to emphasize that
Lord Reid’s dictum in Harz and Power145 only referred to con-
fessions and admissions falling short of full confessions, not to ex-
culpatory statements. The concurring opinion of Cartwright C.J.C.
offers more substantial reasons for the decision in Pichd. On the
basis of the reliability rationale, his Lordship reasoned that it would
be illogical to exclude an involuntary inculpatory statement but to
include an involuntary exculpatory statement which the Crown
asserts to be false. Cartwright C.J.C. continued that if the rationale
of the confession rule is nemo tenetur seipsum accusare then re-
gardless of whether the outcome of any coercion was an inculpatory
or exculpatory statement, the accused’s rights have been violated.
His Lordship also found it odd that the Crown could urge that an
involuntary statement was exculpatory but contend that, had the
statement not been excluded, the accused might not have been
acquitted.
Crown counsel in Pichi surely sought to adduce the accused’s
out-of-court explanation as a previous inconsistent statement, so as
to impeach her credibility as a witness, but not as proof of the prior
statement. In this regard, the confession rule, as a test of admissi-
bility of statements adduced as exceptions to the hearsay ban,
should not have applied. Is there an explanation for the decision
in Pichg, or is it simply wrong?
One author has argued that the effect of Pichg is only to bring
within the ambit of the confession rule exculpatory admissions, as
opposed to exculpatory statements. 40 The former are explained as
falling short of complete admissions of guilt. The author argues that
Pichd can go no further, since only admissions can be adduced as
proof of the truth of their contents. But this explanation of the case
145 Supra, note 4, 817-8.
140 Ratushny, Statements of an Accused: Some Loose Strands (Part I)
(1972) 14 Crim. L.Q. 306.
McGILL LAW JOURNAL
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is unsatisfactory because it is clear that the Crown did not wish to
adduce the accused’s previous statement as proof of its truth. If
the Crown asserted anything as to the contents of the previous
statement, it was that it was false, as Cartwright C.J.C. pointed
out.
14 7
Perhaps the solution is indicated by Cartwright C.J.C. His Lord-
ship commented on the Crown’s duplicitous assertion that Pich6’s
statement was exculpatory, and thus not the proper subject of a
voir dire, but that its exclusion led to her acquittal. The view has
been advanced that it is irrelevant that the statement is exculpa-
tory;’ 48 rather, any statement which the Crown wishes to adduce
against the accused, regardless of its tendency when viewed in isola-
tion, is inculpatory. The authority cited for this opinion is Warren
C.J., in Miranda v. Arizona,4″ who expressed the opinion that if a
statement were truly exculpatory there would be no question of the
prosecution using it.150 It is certainly true that the impeachment of
Pich6’s trial testimony by the out-of-court statement was highly in-
criminatory. Showing the accused to have lied to the police raises a
strong implication of a guilty state of mind, and as such may well
have the same evidentiary effect as an admission. Furthermore, on
the facts of Pichg, juxtaposing the out-of-court statement (i.e., one of
avoidance) with the testimonial statement (confession and avoidan-
ce) may well have had the same effect upon the trier of fact as an
admission.
The decision in Pichg is not consistent with an orthodox con-
struction of the reliability rationale, since the intrinsic trust-
worthiness of a statement not adduced as proof of its contents is
not particularly relevant. However, as soon as one is prepared to
overcome the initial conceptual difficulty by looking at the ultimate
purpose and effect of leading the statement, rather than the im-
mediate evidentiary purpose behind adducing the statement, Pichd
becomes explicable under the reliability rationale. Why should a
statement, albeit exculpatory on its face, whose effect will be to
impeach the accused’s trial testimony and thereby point, at least
indirectly, to a guilty state of mind, not be tested as to its re-
liability? An exculpatory statement which is obtained in breach of
the Ibrahim rule may be unreliable.15′ Even if one is not prepared
147Supra, note 14, 26.
148 Elliot & Wakefield, Exculpatory Statements by Accused Persons [1979]
Crim. L.R. 428.
14D384, U.S. 436, 477 (1966).
“o See Elliot & Wakefield, supra, note 148, 429.
161This
is the position adopted by the Law Reform Commission of
Canada, supra, note 19, 16.
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
467
to make the conceptual leap, Pichg can still be explained on the
basis of the reliability rationale, since the Supreme Court may have
felt that previous inconsistent statements made by the accused to
the police demand special consideration, and should not be admis-
sible even for the non-hearsay purpose of attacking credibility,
unless they are reliable. Pichg is, however, consistent with other
policy bases. As Cartwright C.J.C. pointed out, an infringement of
the right to silence is not diminished if the result of an inducement
is an exculpatory statement.152 Similarly, the sanction of improper
police conduct need not depend on whether the result of the con-
duct is an inculpatory or exculpatory statement. In this light, the
judgment of the Supreme Court of Canada in Pichg is paradoxical
when considered in the context of the Court’s acceptance of the
reliability rationale. Why did the Court not reason that, since the
out-of-court statement was not being adduced as proof of the truth
of its contents, its intrinsic trustworthiness was not relevant, and
thus hold that the confession rule does not apply to exculpatory
statements adduced for the non-hearsay purpose of impeaching
credibility?
It is difficult to find Australian authority directly on this point.
The High Court in Lee held that the modern common law allows
the trial judge in the case of statements made to police officers,
whether confessions or not, a discretion to reject evidence of such
statements.15 But this may have been a reference to admissions
falling short of full confessions, and not to exculpatory statements
adduced for some non-hearsay purpose. The issue is certainly one
which might be treated as a matter of judicial discretion, and as
such it is likely that the question would not arise as a point of law
before an appellate court.
It has been submitted that the decision in Pichd accurately
states the law in England,154 but the authorities relied on are
Ibrahim and Harz and Power which, as stated above, do not really
determine the confession rule’s application to exculpatory state-
ments. In R. v. Storey and Anwar,’55 the accused gave an explana-
tion to the police which, if believed, would make her possession of
narcotics (with which she was charged) innocent. Widgery L.J.,
speaking for the Court, said that an accused’s statement to the
police is always evidence in the case against him, though not ne-
cessarily evidence of the truth of the facts stated . 5 6 His Lordship
152 Supra, note 14, 25-6.
15 Supra, note 23, 151.
154 Elliot & Wakefield, supra, note 148, 430.
155 (1968) 52 Cr. App. R. 334 (C.C.A.).
156 Ibid., 337-8.
McGILL LAW JOURNAL
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continued that the statement, if voluntary, is admissible because
it shows the reaction of the accused when first confronted with
incriminating allegations. If the statement so made constitutes an
admission, says the Lord Justice, it is proof of guilt. On the other
hand, if the statement does not constitute an admission, it is not
evidence of the truth of the words spoken, but of the accused’s
reaction. The issue as to whether the confession rule applies to
the statement, regardless of whether it constitutes an admission,
was not discussed in the judgment, though his Lordship mentions
in passing that the statement must be voluntary. In the absence of
authority directly on point it is difficult to assert with confidence
that the confession rule applies, in England, to the accused’s ex-
culpatory statements.
Where an out-of-court statement made by the accused is partly
incriminatory and partly exculpatory, it appears that the confession
rule will be applied as a test of admissibility. This assertion is a
corollary of the state of the law regarding “admissions falling
short of full confessions”. The confession rule could also be said
to apply to such statements simply because the Crown adduces
the statement as an admission. The case law does not bear directly
on this question but rather on the issue of the evidentiary value
of the self-serving part of the statement. The consensus in the three
jurisdictions
is that as a general rule the whole statement is
received and the accused may rely upon its self-serving portions.1 7
The legal justification for the admission of the self-serving parts has
been described as a “hearsay exception of a parasitic kind”.’58
However, it seems more reasonable to describe the admissibility
of the favourable portions as necessary to the proper understanding
of the inculpatory part, and thus of the weight to be given it. This
appears to be the tenor of the dictum of James L.J. in the recent
case of R. v. Donaldson,159 where his Lordship stated that the jury
considers the exculpatory portions of the statement in deciding
whether the statement viewed as a whole constitutes an admission.1 0
Apart from the contents of statements made by the accused,
what bearing will the circumstances of their utterance have on the
application of the confession rule? The Ibrahim rule does not
’15 In England see Cross, supra, note 89, 544-5 and authorities cited therein;
in Canada see Kaufnan, supra, note 103, 284 et seq. and Schiff, supra, note
68, 912-4; in Australia see Heydon, Cases and Materials on Evidence (1975),
332.
l58 Heydon, supra, note 157, 332.
169 (1976) 64 Cr. App. R. 59 (C.C.A.); see also Elliot & Wakefield, supra,
note 148, 423-4.
160 Ibid., 65.
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
469
generally operate to exclude statements made under compulsion
of statute in judicial proceedings or extra-judicially..’ However,
at least in Australia and England, the compulsion to answer must
not have exceeded the statutory power; and, in judicial proceedings,
the privilege against self-incrimination cannot be invoked unless spe-
cifically abrogated in the instance by the specific statute. There
appears to be no ground in law to prevent the Crown from adducing
at retrial an admission made by the accused during his testimony
at the first trial. 62 Clearly, this is not the type of situation with
which the confession rule is concerned, as the circumstances of the
court-room guarantee reliability and protection of the privilege
against self-incrimination. Further, there need not be any concern
for controlling police conduct in court.
Does the confession rule apply to statements not made under
a statutory compulsion, but in circumstances such that they are
obviously voluntary? In R. v. Erven,13 two constables investigating
individuals on a beach approached the
a report of suspicious
accused and his accomplice, and asked them to explain their
presence. The two gave a false explanation of their business to the
policemen, who testified at the subsequent drug-trafficking trial
that at the time the statements were made they did not know what
the accused were doing. (They were awaiting the arrival of a drug
shipment.) The trial judge refused to hold a voir dire because the
statements were obviously voluntary. Nevertheless, Dickson J.,
speaking for the majority of the Supreme Court, overruled this
refusal, stating that a voir dire is always necessary, even if the
statement appears to be obviously voluntary. His Lordship went
further to express the view that, even if a statement made by an
accused to a person in authority could be considered part of the
res gestae, a voir dire is still required to determine the voluntariness
of the statement. This observation cannot simply be dismissed as
obiter, since on the facts of Erven the accused, when speaking to
the police, were awaiting the arrival of a drug shipment. Therefore
it appears that in Canada res gestae is not a sufficient ground of
admissibility for suspects’ statements made in flagrante delicto to
161 In England see Commissioners of Custom and Excise v. Harz and
Power, supra, note 4, 816-7; R. v. Harris [1970] 3 All E.R. 746 (Central Crim.
Ct). In Canada see Boulet v. The Queen, supra, note 46; Marshall v. The
Queen [1961] S.C.R. 123, 129 per Cartwright J. In Australia see R. v. West
(1972) 18 F.L.R. 333 (Central Dist. Crim. Ct of S.A.); R. v. Travers (1957) 74
S.R. (N.S.W.) 85 (C.C.A.); R. v. Owen [1951] V.L.R. 393 (S.C.) and authorities
cited therein.
162 See R v. McGregor (1967) 51 Cr. App. R. 338 (C.C.A.).
103 Supra, note 14.
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persons in authority. Thus the confession rule has perhaps been
elevated to a higher plane than other exceptional grounds for the
admissibility of hearsay. That is to say that on the basis of Erven
it is not sufficient that a statement made by an accused to a person
in authority be admissible on some ground (e.g., res gestae); it
must be admissible on the ground of having satisfied the Ibrahim
test on the voir dire. Admittedly, most statements admissible as
res gestae would also be free and voluntary. But what of a situation
where the accused confesses when caught house-breaking by police
who sneak up behind him pointing a pistol at his head saying, “Tell
us what you’re doing or … “?
Upon what policy grounds could the decision in Erven rest?
The police-conduct rationale is not really concerned with situations
such as obtained in that case or with the hypothetical example given
above, but with improper behaviour of police officers after the
accused has been taken into custody, especially during interrogation.
A similar observation could be made in relation to the rationale
of the privilege against self-incrimination, though on a wide view
of the privilege it might be argued that it has been infringed in the
example above, and as such this rationale affords a policy justifica-
tion for the ruling that admissibility of the statement by means
of res gestae is not sufficient. Regarding the reliability rationale,
one would imagine that, by definition, a statement qualifying as
res gestae, and admitted as an exception to the hearsay rule, is
reliable.’ 4 The above example might not bear this out, but what
if the facts are changed, such that the police merely grab the!
burglar by the arm? On the issue of reliability, it is noteworthy
that the Supreme Court in Wray ruled admissible those parts of an
otherwise inadmissible confession which are confirmed by real
evidence. Why is such a guarantee of reliability considered sufficient
when reliability by means of res gestae is rejected? Certainly, in
Wray the fact that reliability was guaranteed by real evidence is a
point of distinction. The reliability of real evidence is extrinsic to
an oral statement. Perhaps the Supreme Court did not wish to admit
statements to persons in authority on the res gestae ground because
of the confusion surrounding that notion generally in the law of
evidence. 6 5 The answer may be much simpler. When viewed in
conjunction with Pich, the decision in Erven reflects an attitude
in the Canadian Supreme Court that any out-of-court statement
made by an accused to a person in authority can be tendered only
if admissible under the confession rule. This is so even if the state-
164 See Cross, supra, note 89, 583; Heydon, supra, note 157, 336.
165 See Heydon, supra, note 157, 334.
1981J RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
471
ment is adduced for some non-hearsay purpose, as in Pichd, or
if admissible on some other ground, as in Erven. It seems that in
Canada the accused’s statement must be reliable on the basis of
the confession rule and no other, unless real evidence confirming
the statement is tendered.
While there does not appear to be any recent authority in
Australia, it has been submitted that in England an otherwise inad-
missible confession could be admissible by means of the res gestae
doctrine. 66 Judicial support for such a view can be found in the
following dictum of Lord Hailsham in Ping Lin:
A confession which is simply blurted out by a criminal caught in flagrante
delicto is not the sort of thing at all to which Lord Sumner’s principle
applies. It is emphatically not ‘fear of prejudice or hope of advantage
excited or held out by a person in authority’. If it were, the classical
confession:
‘It’s a fair cop’ uttered by the burglar caught in the act
would be excluded. 6 7
Does the confession rule apply only to statements adduced by the
prosecution or does it equally extend to confessions adduced by a
co-accused? Both Cross 6 8 and the Criminal Law Revision Com-
mittee0 9 think not. This writer knows of only one case to the
contrary. 170 It will be remembered that R. v. Attard held that a state-
ment made to a person not in authority was also subject to the con-
fession rule. It further held that the rule applies to evidence tendered
by one defendant “against” his co-accused. It was pointed out that,
once admitted, such a statement becomes evidence for all purposes
and is thus evidence “against” another accused.’ 7 ‘ In so far as the
rule is directed not solely to deterring improper police conduct, but
also to the policy that it is unsafe to leave such evidence to the jury,
Walsh J.A. extended the rule to the production of the statement by
a co-accused. This appears to be the furthest extension of the rule
by Australian courts, based on their refusal to accept a narrow
policy basis for the confession rule. Walsh J.A. was not unaware
of the problems his decision could imply (e.g., impeding the case
of the co-accused wishing to adduce the confession), but obviously
felt that they were outweighed by the problems of the opposite view
(e.g., allowing production of a confession adverse to a co-accused
without the same safeguards he would enjoy if it were adduced by the
166 See Cross, supra, note 89, 593; Gooderson, Res Gesta in Criminal Cases
-1
55, 67.
[1957] Camb. L..
167Supra, note 2, 602.
168 Supra, note 89, 535.
169 Supra, note 10, 53.
170 See R. v. Attard, supra, note 107.
’71 Ibid., 756.
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Crown) .172 However, these policy considerations could have been
respected by considering the admissibility of the statement under
the discretion rather than by applying the confession rule. Never-
theless, it may be possible to reconcile the decision in Attard with
an orthodox approach under the hearsay rule. When the Crown
adduces a confession it does so as the accused’s adversary, just
as in a civil case an admission will be adduced against one party
by his opponent. In view of the defence of Attard’s co-accused
(i.e., that he was innocent and that Attard was guilty by admission),
he stood in relation to Attard as an opposing litigant. If the co-
accused could adduce the confession,, it is not unreasonable that the
rule governing the admissibility of confessions should apply. In
this light the decision in Attard does not appear grossly inconsistent
with the notion of confessions as a sub-species of the hearsay ex-
ception of admissions.
VI. The voir dire
In Canada, with the judgment in Erven,1 3 a voir dire will always
be necessary to determine the admissibility of the accused’s state-
ment to a person in authority, even if that statement is on its face
voluntary. In that case, when the statements were made by the
accused in response to a question posed by police investigating a
report of suspicious individuals on a beach, the constables were
unaware that
the accused and his accomplice were awaiting a
shipment of illicit drugs. Because the trial judge felt that the state-
ments were obviously voluntary he did not hold a voir dire. On
appeal, the Supreme Court decided that a voir dire should have
been held, even though the statements appeared to be voluntary.
This was felt necessary in order to ensure a full hearing on the issue
of voluntariness, to guarantee the accused’s right to testify on that
issue without having to take the stand at trial, and to maintaini
the functional separation of the voir dire and the trial so that
admissibility is determined before the voluntariness of a statement
4 Erven could be restricted to cases where
is challenged at trial.1
the accused’s statement is made in answer to a question posed by a
person in authority. A voir dire should also be held where the trial
is by a judge sitting without a jury.175 No voir dire is necessary
where the statement to be adduced was made under compulsion
7
172 Ibid., 757.
173 Supra, note 14.
174 Ibid., 931-9 per Dickson J.
175R. v. Gauthier [1977] 1 S.C.R. 441; in Australia see Smithers v. Andrews
[1978] Qd R. 64 (F.C.).
19813 RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
473
of statute in a prior judicial proceeding. 17 The situation with
regard to a statement made under compulsion of statute, but not
in a judicial proceeding, is not as clear, there being no Supreme
Court case directly on point and differing views in lower appellate
courts’ 7 7 The phase of trial at which the Crown seeks to adduce
a statement made by the accused will not affect the principle.
Whether the prosecution wishes to produce a confession during its
case in chief, upon cross-examination of the accused, or in rebuttal,
it must establish voluntariness on a voir dire.17 This does not mean
that the Crown is free to split its case.1 9 The Supreme Court ex-
pressly left open in Erven the possibility of the accused waiving his
right to the voir dire.80 There is also appellate authority in Ontario
favouring the possibility of waiver.’ 8 ‘
In England, it seems that a voir dire will in general only be
required where an objection to admissibility is raised,8 2 but there
is apparently nothing to impede a trial judge from holding a voir
dire on his own initiative. It also appears that the admissibility
of a statement will be tested on a voir dire when an objection is
taken,1 83 even if that occurs during the Crown’s cross-examination
of the accused’8 4
There does not appear to be any recent Australian authority
directly on point. However, there is an obiter dictum of a full
Bench of the Supreme Court of Victoria to the effect that the trial
judge must still determine the voluntary character of a statement
sought to be adduced, even if a voir dire is not asked for.185
170 See Boulet v. The Queen, supra, note 46.
177 See R. v. Smith (1974) 15 C.C.C. (2d) 113 (Alta S.C., App. Div.) (no voir
dire necessary); R. v. Slopek (1975) 21 C.C.C. (2d) 362 (Ont. C.A.) (voir dire
necessary).
‘ 78 Monette v. The Queen [1956] S.C.R. 400;. see also R. v. Rosa (1979) 6
C.R. (3d) 84 (B.C.C.A.).
179 See R. v. Dubois [1977] C.A. 122; R. v. Bruno (1976) 27 C.C.C. (2d) 318
(Ont. C.A.).
180 Supra, note 14, 940; see also Powell v. The Queen [1977] 1 S.C.R. 362, 367.
(leave to appeal
181 See R. v. Dietrich (1970) 11 C.R.N.S. 22 (Ont. C.A.)
refused [1970] S.C.R. xi); R. v. Sweezey (1975) 20 C.C.C. (2d) 400 (Ont. C.A.);
R. v. Rushton (1975) 20 C.C.C. (2d) 297 (Ont. C.A.); R. v. Clayton (1978) 3
C.R. (3d) 90 (Ont. C.A.).
182See Phipson, Evidence, 12th ed. (1976), 799, 800; Conway v. Hotten
[1976] 2 All E.R. 213, 217 (Q.B.); R. v. Francis (1959) 43 Cr. App. R. 174
(C.C.A.).
183 Phipson, supra, note 182, 800.
184R. v. Rice [1963] 1 All E.R. 832, 839 (C.C.A.); see also R. v. Treacey
[1944] 2 All E.R. 229 (C.C.A.).
185R. v. Deathe [1962] V.R. 650, 652 (S.C. in banco) per Scholl J.
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It need hardly be said that the burden of proof at the voir dire
rests on the prosecution. In England, the standard of proof that
the Crown must meet is that generally applicable to the ultimate
test in criminal trials, proof beyond reasonable doubt. 80 The
Criminal Law Revision Committee has recommended retention of
this standard but in the context of a modified confession rule.18
7
In Australia, the High Court has held that the applicable standard
is not proof beyond reasonable doubt but that the judge be satisfied
of a statement’s voluntariness on prima facie grounds. 188 This
holding has been applied as imposing the standard of proof on
a balance of probabilities.8 9 Such a position may be awkward in
cases tried before a judge without a jury, where the presiding
judge will have to decide first the issue of admissibility on thei
balance of probabilities, but, in determining the weight to attribute
to the confession, apply the standard of proof beyond reasonable
doubt. However, if the jury reconsiders voluntariness on the issue
of the weight to be accorded the statement, there will be no danger
of their prevailing over the trial judge, since they have to be satisfied
on a higher standard. This may be a flaw in the English position.
It should also be noted that, though the Crown’s task of passing
the Ibrahim test may be easier, given the relaxed standard of
proof, the accused in Australia can still have the statement excluded
on discretionary grounds. The onus for such exclusion is borne by
the accused, 190 presumably on the balance of probabilities. 191
The weight of recent Canadian authority favours the standard
of proof beyond reasonable doubt on the issue of voluntariness at
the voir dire.192 The Canadian Law Reform Commission favours the
retention of this standard for the reason that, in most cases, the
186 See R. v. Ping Lin, supra, note 2, 597, 599 per Lord Hailsham; R. v.
Angeli [1978] 3 All E.R. 950, 953 (C.C.A.); R. v. Richards, supra, note 34, 830;
Cross, supra, note 89, 75 and authorities cited therein.
‘ 87 Supra, note 10, “Draft Bill”, clause 2.
188 Wendo v. The Queen (1964) 109 C.L.R. 572-3 (Aust. H.C.); see also R.
v. Pfitzner (1977) 15 S.A.S.R. 171, 189 (S.C. in banco).
189 R. v. Plotzki, supra, note 76; R. v. Saunders [1965] Qd R. 409 (C.C.A.);
R. v. Bodsworth, supra, note 129.
190 Sinclair v. The King, supra, note 92, 340; R. v. Bodsworth, supra, note
129; R. v. Smith [1964] V.R. 95 (S.C.); R. v. Batty [1963] V.R. 451 (S.C.);
R. v. Collins (1976) 12 S.A.S.R. 501 (S.C. in banco).
” R. v. Buckskin (1974) 10 S.A.S.R. 1, 2 (S.C.).
192 Ward v. The Queen, supra, note 95, 506; A. v. Hatton (1978) 39 C.C.C.
(2d) 281, 298 (Ont. C.A.); R. v. Pickett (1975) 31 C.R.N.S. 239, 241-4 (Ont.
C.A.); R. v. Jackson, supra, note 70, 37.
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
475
admission into evidence of a confession will lead to the conviction
of the accused. 9 3
It is the duty of the trial judge sitting on a voir dire to decide
the issue of voluntariness. He must not let the statement go before
the jury de bene esse for them to decide the issue,194 though they
may reconsider the evidence going to voluntariness in considering
the weight to be attributed to the statement. Should further
evidence relating to voluntariness surface during the trial, the
judge (at least in England) may ‘reverse’ his voir dire determina-
tion and exclude the confessionii 4a
What is the proper course for the trial judge if not only the
voluntariness of the statement is attacked on the voir dire, but
issue is raised as to whether the statement was made at all or,
if made, as to what precisely was said? There is authority from the
Supreme Court of Canada that, where the accused denies having
made the impugned statement, the judge on the voir dire does not
decide whether the statement sought to be adduced was actually
made. 19 5 As being relevant to weight this issue was thought to be
within the exclusive function of the jury:
with regard to the question as to whether the statement was actually
made and whether it is true, the judge presiding over a voir dire in a
trial by jury is required to decide only whether there is evidence to be
submitted to the jury; it is not for him to weigh such evidence. 9 6
It is not clear if the judge makes no ruling whatsoever on the vo-
luntary nature of the statement or if he decides that there is prima
facie evidence that the confession was made. 9 7 If the former is
correct it is difficult to comprehend how a judge can be convinced
of voluntariness beyond reasonable doubt where there is doubt
as to whether the statement was even made. Perhaps the answer
is that the judge decides voluntariness in abstracto; that is, the
statement, if it was made, is voluntary. However, does not a ruling
that the statement is voluntary necessarily imply that it was made?
Furthermore, if the judge decides on this basis that the statement,
if made, is voluntary, and there is serious doubt raised as to whether
it was made, could it not be said that any probative value that the
statement might have would be outweighed by its prejudicial
193 See supra, note 19, 16.
194 R. v. Richards, supra, note 35.
194a R. v. Watson (1980) 70 Cr. App. R. 273 (C.C.A.).
195R. v. Gauthier, supra, note 175, approving R. v. Mulligan (1955)
111
C.C.C. 173 (Ont. C.A.); see also R. v. Ferguson (1968) 62 W.W.R. 408 (B.C.
Cty Ct).
19 Supra, note 175, 448.
1W97As Cross states, supra, note 89, 71.
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effect and should thus be excluded in the discretion of the trial
judge? 98 If the latter hypothesis is correct there still appears an
incongruity, for the judge is allowing the production of a state-
ment, the existence of which is only established on prima facie
grounds, but the voluntariness of which has been proved beyond
reasonable doubt. However, the whole problem may lie not with
the prima facie ruling on the statement’s existence but with
establishing beyond reasonable doubt that it is voluntary. Further-
more, it is incorrect to state simply that probative value is irrelevant
to admissibility, if only because considerations of probative value
are referentially incorporated into rules governing admissibility.
The Supreme Court itself has accepted that the confession rule is
essentially a test of reliability.
In Australia there is authority for this same view that the judge
decides voluntariness, while the jury decides if the statement was
made.9 9 However, there is a distinction to be made between the case
in which the accused denies making any confession as a result of
threats or promises and the case in which exclusion of the state-
ment (alleged by the Crown to have actually been made but denied
by the defence) is sought on discretionary grounds, as for denial
of the right to see a solicitor. 00 Indeed, the very fact that there
is doubt as to whether the statement was made or is accurate is
highly relevant to the exercise of the exclusionary discretion. 20′
There is authority for the view that where the accused contends
that no statement was made, a voir dire should not even be held
because the issue raised is not one to be determined by the judge
but by the jury.20 This point has, however, been held not to apply
where the accused complains of such unfairness in the conduct of
an interrogation that no part of it should be received.203 The
High Court has not expressly ruled whether the issue of the
existence of the statement is properly left to the jury. However,
in Burns v. The Queen’94 the Court laid down a test to be incorporat-
ed into the trial judge’s direction to the jury, whereby the jury
can deduce, from the alleged statement’s truth and the prior know-
ledge of the police of the facts purportedly admitted, whether the
19 See R. v. Wray, supra, note 43.
19 R. v. Matheson [1969] S.A.S.R. 53 (S.C.).
2 00R. v. White (1976) 13 S.A.S.R. 276, 280 (S.C. in banco).
2 02Driscoll v. The Queen (1977) 15 A.L.R. 47 (Aust. H.C.).
202R. v. Gleeson [1975] Qd R. 399 (C.C.A.).
-2oR. v. Hart [1979] Qd R. 8 (C.C.A.); see also R. v. Borsellino [1978] Qd
204 (1975) 6 A.L.R. 95, applied in Matusevich v. The Queen (1977) 15 A.L.R.
R. 507 (S.C.).
117 (Aust. H.C.).
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
477
statement was in fact made. The High Court thus appears to hold
the view that it is for the jury to decide whether the statement
was made. Though the same critique as was made of the Canadian
position could be made of the Australian, there appear to be subtle
differences. First, serious doubt as to whether the confession was
made may, in Australia, give rise to exclusion on discretionary
grounds. ; Second, the standard of proof on the voir dire in
Australia is the balance of probabilities, and thus the incongruities
raised above do not exist, at least not to the same degree.
There does not appear to be any English authority directly on
the point. Cross states the position as- being essentially the same
as that of Canada and Australia:
it is for the judge to decide whether there is prima facie evidence that
the confession was made, leaving the jury to determine whether it was
in fact made.206
The learned author cites a Canadian case in support of this,20 7 as
well as R. v. Robert,20 8 the latter of which does not address itself
directly to the issue at hand, but holds that fitness to plead could
be left to the jury together with the ultimate issue. To hazard a
guess based on the standard of proof at the voir dire would be
difficult in so far as Canada and Australia, with different standards,
have both held that whether a confession was in fact made is a
matter to be decided by the jury, not by the judge presiding at the
voir dire.
1
The Court of Criminal Appeal held in R. v. Hammond2
9 that it
was not improper for Crown counsel to ask the accused testifying
on the voir dire if the impugned statement is true. The accused
gave his story as to how the alleged confession was beaten out of
him. In answer to the prosecuting attorney’s question on cross-
examination, he stated that the confession was true. On appeal, the
Court decided that the question and answer were admissible on the
voir dire as going to the accused’s credibility since the truth of the
statement was relevant to the issue of how he came to make it.
Whether Hammond is still the law in England has been challenged
by the Privy Council’s refusal to follow it in Wong Kam-ming v.
The Queen.210 In fact, their Lordships stated clearly that Hammond
is wrong,211 and questioned the logic of the “relevant to credibility”
2 o5Driscoll v. The Queen, supra, note 201.
206 Supra, note 89, 71.
2017R. v. Mulligan, supra, note 195.
208 [1954] 2 Q.B. 329 (Cardiff Assizes) per Devlin J.
200 [1941] 3 All E.R. 318.
210 Supra, note 41.
211 Ibid., 257.
McGILL LAW JOURNAL
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ratio of Hammond by pointing out that if the accused denies the truth
of the confession, the truth or falsity of this denial cannot be deter-
mined until the jury has rendered its verdict on his guilt. But if the
defendant admits the truth of his confession this would show that
his story of police violence is worthy of credit.2 12 Their Lordships
reiterated that the sole object of the voir dire is to determine
voluntariness. They felt that to allow a question on truthfulness
would undermine this purpose because confirmation of the con-
fession’s truth by the accused would inescapably lead to its ad-
mission, regardless of credible evidence of police violence.218 Cross
has also said that it is difficult to maintain that a true confession
is more likely to be voluntary than a false one.214
The Supreme Court of Canada followed Hammond in its judg-
ment in DeClercq v. The Queen. 15 The majority, while stressing
that the ultimate issue on the voir dire is voluntariness, held that
the truth or falsity of the statement may be relevant to that inquiry
as going to the credibility of the accused’s voir dire testimony. It
appears that a finding of voluntariness based solely on the truth of an
admission would be reversed.2 1 6 DeClercq is somewhat more start-
ling than Hammond in view of the fact that the trial in the former
was by a judge sitting without a jury, and it was the magistrate
himself who asked the accused if his statement was true.
The issue of admissibility of the question “Is it
true?” in
Australia seems to have been approached with caution. In Queens-
land at least, the accused can simply refuse to answer the question
by claiming the privilege against self-incrimination.2 7 This is not the
case in Tasmania, where Neasey J., reasoning mainly on the dis-
senting opinions
the question on dis-
cretionary grounds. 218 He stated thanSif the accused dmitted the
truth of his statement on the voir diie1 -4hfadmsnion would be
admissible at the trial itself. Such a result, he concluded, would
in DeClercq, disallowed
212 Ibid., 256, approving Heydon, supra, note 157, 181. See also Grimaud,
Declercq v. The Queen: A Confession’s Reliability on Voir Dire (1970) 8
Osgoode Hall L.J. 359, 561; Grayburn, Truth as the Criterion of Admissibility
of Confessions (1962-63) 5 Crim. L.Q. 415, 421.
2 3 Supra, note 41, 256, approving R. v. Hnedish (1958) 26 W.W.R. 685 (Sask.
214 Cross, The Functions of the Judge and Jury with Regard to Confessions
Q.B.).
[1960) Crim. L.R. 385, 387.
2 15 Supra, note 45.
218R. v. Muncaster [1975] 5 W.W.R. 605 (B.C.C.A.).
217R. v. Toner [1966] Q.W.N. 44 (S.C.); R. v. Gray [1965] Qd R. 373 (Crim.
Ct).
218R. v. Toomey, supra, note 55.
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
479
lead to the breakdown of the criminal trial process. His Honour
added that to allow the question would strongly discourage the
accused from testifying, thereby depriving the court of his version
of the interrogation, and thus undermining the policy ground of
controlling improper police conduct. Furthermore, the knowledge of
the confession’s truth would tend to predispose the trial judge
when addressing his mind to voluntariness. Neasey J. thus concluded
that the question should not be allowed, especially where its re-
levance is only remote. His Lordship did speculate that there might
be cases where the question could be relevant, such as where the
accused alleges that the confession is a police invention.2 19
It appears from R. v. Wright220 that in South Australia the
question is strictly permissible but will be carefully scrutinized with
an eye for discretionary exclusion. This seems to be the common
ground of the three opinions comprising the judgment. The facts
show that the accused succumbed to an exhortation made by his
father in the presence of the police to tell the truth. Bray C.J. felt
that the question of the confession’s truth is generally relevant
to credibility and could in exceptional circumstances be relevant
apart from credibility where the inducement was to confess as
opposed to an inducement to make a true confession, as was the
case in Wright. In such a case his Lordship stated that the truth
of the confession is irrelevant to the question of the effect of the
inducement. Bray CJ. also stated that the truth of the confession
is irrelevant to the exercise of the exclusionary discretion since
objectionable police conduct, at the control of which the discretion
is aimed, is no less objectionable because it elicits the truth. His
Honour stated further that the ground of admissibility of questions
as to the truth should be kept narrow, otherwise it would lead to
the Crown calling extraneous evidence to prove the confession’s
truth and thus transform the voir dire into a duplication of the trial.
Chamberlain J. disagreed with these last two reasons, stating, first,
that truth of the confession is relevant to police impropriety and
that the issue is not whether the police behaved improperly, but
whether the admission was made as a consequence of such im-
propriety. Second, his Lordship was not disturbed by the possibility
that the Crown might prove the confession at the voir dire by
external evidence. Zelling AJ. said that though the accused could
have refused to answer on the privilege against self-incrimination,
219 See Burns v. The Queen, supra, note 204, where the High Court laid
down a test whereby the confession’s truth confirms that it was not invented
when the police were previously unaware of the facts admitted.
2 2 0 R. v. Wright, supra, note 54.
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the question was relevant to his credibility, but subject to the
exercise of judicial discretion to exclude.221
Many of the criticisms to be made of the position adopted in
Hammond and DeClercq have surfaced in the foregoing discussion
of the case law, but there are still others. Asking the accused on
the voir dire if he is guilty effectively violates the function of the
trial within the trial as a separate inquiry into voluntariness, where
the accused can testify without jeopardizing his right against
self-incrimination on the ultimate issue of guilt. 22 Further, the
prejudice which the accused suffers from such a question in a trial
by judge without jury (as in DeClercq) is obvious. That the ques-
tion’s pertinence to credibility is illogical has been pointed out and
recognized by the Privy Council in Wong Kam-ming.223 It will be
remembered that it has been held that the Crown must establish
voluntariness on a voir dire whether it seeks to adduce the con-
fession in its case in chief, in cross-examination or in rebuttal.
It has been asserted that this rule is broad enough to exclude use
of the statement for purposes of cross-examination at the voir
dire.2 The question “Is it true?” is in effect “Is it true that you
committed the crime?” To put such a question at the voir dire, the
purpose of which is to determine the confession’s admissibility,
is to put the cart before the horse. Cross has stated that the
distinction between cross-examination as to credibility and cross-
examination going to the issue is simply not applicable to situations
like those in Hammond or DeClercq.225
If the accused is to be questioned on the voir dire as to the truth
of his confession, it is submitted that the preferable approach is to
be discerned from the Australian judgments; that is, to scrutinize
the relevance of the question in the particular circumstances of the
instant voir dire, the whole being subject to the judge’s ex-
clusionary discretion. The question should certainly be inadmissible
where the trial is by judge alone. Furthermore, given the illogicality
in the “relevance to credit” ratio of Hammond and DeClercq, it is
submitted that even in Canada, and perhaps England, where the
judge’s exclusionary discretion is narrower than in Australia, the
question should be excluded. If the judge’s discretion to exclude is
=1 In Victoria it seems that the question pertaining to the confession’s
truth can be asked -subject to the judicial discretion to exclude: see R. v.
Amad [1962] V.R. 545 (S.C.).
2 See DeClercq v. The Queen, supra, note 45, 912 et seq., per Hall 3.,
dissenting.
= Supra, note 43, 86, n. 212.
221Ratushny, Unravelling Confessions, supra, note 25, 484.
= Cross, supra, note 89, 386.
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
481
limited to evidence with little probative value in relation to its
grave prejudicial effect, then surely the question should not be
allowed: its prejudicial effect is obvious and its relevance to credit,
as pointed out above, is suspect.226 This appears to be the view of
the Canadian Law Reform Commission, which recommends that the
prosecution should not be allowed to ask the accused if his state-
ment is true or false.227
If the accused can be asked on the voir dire whether the con-
fession is true, can he claim the privilege against self-incrimination?
The issue becomes highly pertinent if an admission made during
the accused’s voir dire testimony can be used at trial. In Queens-
land the claim to privilege exists for the accused at the voir dire,228
while in Tasmania it does not.229 The situation is less clear in
In a recent Canadian case it was held that the
South Australia.
accused could not claim the privilege at the voir dire but, by the
same token, the Crown could not adduce at trial admissions made
by the accused during the voir dire.23′ The writer knows of no
authority directly on point in England.
VII. The trial judge’s discretion
Excepting occasional oblique references to the trial judge’s ex-
clusionary discretion, the foregoing discussion has been concerned
with exclusion of confessions -obtained in breach of the confession
rule. Should the trial judge find on the voir dire that the confession
is admissible under the rule, he may still exclude it at his discretion.
The two distinct criteria upon which the exercise of this discretion
rests are the Judges’ Rules and unfairness. The two criteria shall
be treated separately for convenience, though it appears that they
have fused in practice.
The English courts have repeated that the Judges’ Rules are not
rules of law but administrative guidelines for the police in the
interrogation of suspects.2 32 Both in the literature~3 and in the case
226See DeClercq v. The Queen, supra, note 45, 909 per Cartwright C.J.C.;
Ratushny, supra, note 23, 491.
227 Report on Evidence, supra, note 21, 7(5).
228R. v. Gray, supra, note 217; R. v. Toner, supra, note 217.
229 R. v. Toomey, supra, note 55.
230R. v. Wright, supra, note 54.
231R. v. Magdish (1978) 3 C.R. (3d) 377 (Ont. S.C.).
232For a detailed treatment of the Rules, see Gooderson, The Interrogation
of Suspects (1970) 48 Can. Bar Rev. 270.
233See Brownlie, Police Questioning, Custody and Caution [1960] Crim.
L.R. 298; Devlin, The Criminal Prosecution in England (1960); Gooderson,
supra, note 232; Smith, The New Judge’s Rules –
a Lawyer’s View [1964]
Crim. L.R. 176; Criminal Law Revision Committee, supra, note 10, 45.
McGILL LAW JOURNAL
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law23 4 it is asserted that the trial judge has a discretion to exclude
statements obtained in breach of the Judges’ Rules. However,
there is a marked tendency in the courts not to exclude the state-
ment simply because of non-compliance with the Rules. 2,3 The cases
tend to stress that the prevailing concern is voluntariness, adding
that the courts retain a discretion to exclude where the statement,
albeit voluntary, was obtained in breach of the Judges’ Rules.230
It is difficult to deny the existence of the judge’s discretion to ex-
clude where the Judges’ Rules have been breached, in view of the
numerous dicta asserting the existence of that power. However,
it is equally difficult to assert with confidence the existence of that
discretion in view of the dearth of cases in which it has been exer-
cised.2’7 This, coupled with the repetitious assertion that the pri-
mary concern is voluntariness, leads the present writer to postulate
that the discretion exists, but will only be exercised where the
breach was not purely technical, and where the case for volun-
tariness is hard. That is to say that the contravention of the Judges’
Rules will be allowed to tip the balance away from voluntariness
where the case for the latter is marginal and the former is not
purely technical. This will especially be the case where the severity
of the breach of the Rules can be construed as going to the issue
of voluntariness itself.
With slight variation of substance, the Judges’ Rules have been
adopted by each Australian state in some manner.238 It appears
that in Australia, they may be considered as a factor in the general
discretion to exclude for unfairness.23 9 A breach of the Rules will
not in itself be sufficient for exclusion. This was the view taken
234R. v. Sang, supra, note 38, 453 per Lord Scarman; Dilks v. Tilley [1979]
1 R.T.R. 459 (Q.B.); R. v. Williams (1967) 67 Cr. App. R. 10 (C.C.A.); R. v.
Allen [1977] Crim. L.R. 163 (Norwich Crown Ct); R. v. Lemsatef [1977] 2 All
E.R. 835 (C.A.); R. v. Osborne [1973] 1 Q.B. 678, 689 (C.A.); R. V. Prager,
supra, note 6, 1118; R. v. Ovenall, supra, note 34, 126; R. v. Collier & Stenning
(1965) 49 Cr. App. R. 344; R. v. May (1952) 36 Cr. App. R. 91, 93 (C.C.A.); R. v.
Bass [1953] 1 Q.B. 680, 684 (C.C.A.).
238Baldwin & McConville, Police Interrogation and the Right to See a
Solicitor [1979] Crim. L.R. 145 and authorities cited at 147; see also R. v.
Roberts [1970] Crim. L.R. 464 (C.C.R.).
236 See R. v. Prager, supra, note 6; R. v. Roberts, supra, note 235; R. v.
May, supra, note 234; see also Smith, supra, note 233, 176.
2d ed. (1979), 337; Gobbo, Cross on Evidence, 2d Aust. ed. (1979), 532-3.
237 R. v. Allen, supra, note 234.
23 8 See Aronson, Reaburn & Weinberg, Litigation – Evidence and Procedure,
239 See Weinberg, The Judicial Discretion to Exclude Relevant Evidence
(1975) 21 McGill LJ. 1, 21; R. v. Hart, supra, note 203, 13; Driscoll v. The
Queen, supra, note 201, 66.
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
483
by the High Court in Lee240 and there appears nothing in the cases
since Lee to suggest the contrary.?41 The view of the High Court is
best explained in its own words:
[The Judges’ Rules] are not rules of law and the mere fact that one or
more of them has been broken does not of itself mean that the accused
has been so treated that it would be unfair to admit his statement. Nor
does proof of a breach throw any burden on the Crown of showing some
affirmative reason why the statement in question should be admitted.
As has already been pointed out, the protection afforded by the rule that
a statement must be voluntary goes so far that it is only reasonable to
require that some substantial reason should be shown to justify a
discretionary rejection of a voluntary admission. The rules may be re-
garded in a general way as prescribing a standard of propriety and it is
in this sense that what may be called the spirit of the rules should be
regarded.
It is indeed, we think, a mistake to approach the matter by asking as
separate questions, first, whether the police officer concerned has acted
improperly, and if he has, then whether it would be unfair to reject
the accused’s statement. It is better to ask whether, having regard to
the conduct of the police and all the circumstances of the case it would
be unfair to use his own statement against the accused.242
The Court went on to repeat that the real justification for the
Judges’ Rules, and for the trial judge’s exclusionary discretion, is
the guarantee of fairness to the accused. 43 Though this is the
general approach of the courts, there frequently is a difference of
opinion as to when police misconduct will reach the point of
making it unfair to adduce the accused’s statement against him.
Such difference of opinion has arisen, for example, in the case
where the police persist in questioning a suspect who claims the
right to remain silent, and eventually extract an admission from
him. 44
The Judges’ Rules have never played any important role in
Canadian law.
The general judicial discretion to exclude admissible evidence
(i.e., a confession not repugnant to the Ibrahim rule) presents in-
teresting contrasts among the three jurisdictions. In Canada the
discretion has been severely tapered by Wray, while in Australia
it is an important part of the law relating to confessions. The
24OSupra, note 23.
241 See, e.g., R. v. Deverall [1969] Tas. S.R. 106 (S.C.); Webb v. Cain [1965]
V.R. 91 (S.C.).
=-R. v. Lee, supra, note 23, 154.
2 43Ibid., 159; see also R. v. Ragen [1964-65] N.S.W.R. 1515, 1518-22 (S.C.).
244R. v. Evans [1962] S.A.S.R. 303 (S.C. in banco): contra, Harris v. Samuels
(1973) 5 S.A.S.R. 439 (S.C. in banco); R. v. Ireland [1970] A.L.R. 727 (Aust.
H.C.).
McGILL LAW JOURNAL
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existence of a general discretion to exclude evidence otherwise
admissible has been thought to exist in England, though rarely
used. Recent developments tend to confirm the existence of a
discretion but are not very illuminating as to its nature and scope.
In LeeA 5 the High Court of Australia, in confirming McDermott
v. The King, affirmed that there is a broad judicial discretion to
exclude a voluntary confession where it would be unfair to use it
against the accused. The trial judge should
form a judgment upon the propriety of the means by which the state-
ment was obtained by reviewing all the circumstances and considering
the fairness of the use made by the police of their position in relation
to the accused.246
The Court held that the foregoing describes the discretion rule
and that no further attempt should be made to define it, as such an
effort would limit its scope. The Court did say that unfairness
relates to the circumstances under which the statement was made
and not simply to its prejudicial effect upon the defence.24
7 Further-
more, the likelihood of improper police conduct causing an untrue
statement was held to be only one criterion relevant to the exercise
of the discretion.2 48 The Court thereby recognized a broader policy
basis for the rule than mere reliability. The High Court added in
Wendo v. The Queensa 9 that the unlawful or irregular obtaining of
evidence does not in itself afford a reason for excluding it. The
Australian courts have, since Lee, not questioned the existence of
the discretion,2
and have added various criteria relevant to the
exercise of the discretion, such as the physical condition of the
suspect at the time of police questioning24 ‘ and the balance of
interests between conviction of the guilty and protection of the
individual from unfair or illegal treatment
52
It is beyond doubt that the discretion to exclude for unfairness
in Australia is very broad and aids the courts in excluding con-#
fessions not caught by a strict application of the Ibrahim rule.
Furthermore, the discretion allows the Australian courts to put into
5 Supra, note 23, 151 et seq.
2 4
246 Ibid., approving McDermott v. The King, supra, note 18, 513 per Dixon J.
247 Ibid., 152.
24s Ibid., 153; see also R. v. Starecki, supra, note 93.
249 Supra, note 188.
-250 For cases recognizing the existence of the discretion, see Weinberg,
supra, note 239, 13, n. 50.
251 R. v. Von Aspern [1964] V.R. 91 (S.C.).
252R. v. Austin (1979) 21 SA.S.R. 315, 318 (S.C. in banco), applying to a
confession the test in Bunning v. Cross (1978) 52 A.L.T.R. 561 (Aust. H.C.); see
also R. v. Killick (1979) 21 SA.S.R. 321 (S.C.).
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
485
application the recognition of broad policy grounds underlying the
confession rule. Finally, the aforementioned makes it clear that the
Australian concept of unfairness extends out of’the court room to
the manner of obtaining the confession, whereas in Canadian law
it is limited to unfairness in the court room at trial. However,I
confessions in Australia have also been excluded where adducing
them would cause unfairness at trial.2 53
In Canada, the judicial discretion to exclude technically ad-
missible evidence has, as stated above, been severely curtailed by
the Supreme Court in R. v. Wray.2M Arrested for murder, the accus-
ed told the police that he had thrown the weapon in a swamp and,
being guided to the place by the accused, the police found the
weapon. It was conceded on the facts that- the confession was
involuntary and hence inadmissible. The Ontario Court of Appeal
upheld the acquittal on the grounds that evidence of the discovery
could properly be excluded by the trial judge in his discretion to
reject evidence, the admission of which would be “unjust or unfair
to the accused or calculated to bring the administration of justice
into disrepute”. 255 It should be pointed out immediately that the
judgment in Wray on the discretionary power did not relate to
the confession but to the finding of real evidence. (That part of
the confession confirmed by the finding of the gun was held
admissible.) However the judgment in Wray speaks broadly of
the judicial discretion to exclude and it is generally thought that the
law stated in the case applies to discretionary exclusion of con-
fessions as well. 255 Martland J., writing for the majority, first
pointed out that there is no judicial authority in Canada or England
to support the proposition that a trial judge has discretion to ex-
clude evidence because its admission is calculated to bring the
administration of justice into disrepute.2* As to the discretion to
exclude for unfairness, his Lordship reviewed the case law2 58 and
concluded that, on the authorities, there exists no general discretion
to exclude admissible evidence. His Lordship’s view was that
the exercise of a discretion by the trial judge arises only if the ad-
mission of the evidence would operate unfairly. The allowance of ad-
missible evidence relevant to the issue before the court and of substantial
253 See R. v. Amad, supra, note 221; R. v. Wright, supra, note 54.
254 Supra, note 43.
255 Ibid., 287.
256 See, e.g., Roberts, supra, note 50, 29.
257 Supra, note 43, 287. The Law Reform Commission of Canada recom-
mended this as a criterion for the exclusion of evidence: supra, note 21, 16.
258 Notably Noor Mohamed v. The Queen [1949] A.C. 182 (P.C.); Harris v.
D.P.P. [1952] A.C. 694 (H.L.).
McGILL LAW JOURNAL
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probative value may operate unfortunately for the accused, but not
unfairly. 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.259
Martland J. underlined the fact that unfairness relates not to the
manner of obtaining evidence but unfairness in the actual trial of
the accused. 60
the control of police
Though no mention is made of the policy considerations under-
lying the confession rule, that part of Wray dealing with the judicial
discretion certainly rejects
impropriety.
Second, as Martland J. himself pointed out,2 6′ Noor Mohamed, upon
which he based his view of the discretion,26 2 was a similar-fact case.
On these two footings the following criticisms can be made. The
confession rule in its classic form, whatever be its underlying policy,
is a rule of admissibility directed at the manner of obtaining a
specific type of evidence. Is it then unreasonable or illogical that
a judicial discretion to exclude a confession for unfairness also
consider the method of obtaining? This is the option of the
Australian courts but Martland J.’s “unfairness at trial” test pre-
cludes this option in Canada. Second, it is submitted that Martland
J.’s test should be restricted to similar-fact cases where pre-
judicial effect is always great, relevance and admissibility are
often tenuous, and probative force in relation to the crime charged
has been at the crux of appellate judgments. In what circumstances
could this test operate to exclude a confession on discretionary
grounds? Of course admissibility could be tenuous where the
evidence on the voir dire is marginal or approximative as
to
the Ibrahim requirement, and a confession will always be gravely
prejudicial. However, when could the probative force of a con-
fession be trifling vis-&-vis the main issue?26 3 By definition, an ad-
mission of guilt can only have great probative value regarding the
main issue. Juries can certainly re-hear evidence going to voluntari-
ness in determining the weight of a confession, but the criteria:
governing the exercise of the discretion are directed at admissibility.
This determination is at an end when the jury comes to consider
2 59 Supra, note 43, 293.
260 Ibid., 295.
2 01 Ibid., 290.
22 Ibid., 293.
263 See, e.g., R. v. Deleo (1972)
(Ont. Cty Ct). In
R. v. Stewart, supra, note 91, the trial judge excluded admissions by a
mentally disabled accused on this ground. It is curious, however, that the
Supreme Court did not approach the issue in Ward (supra, note 95) in such
a manner.
18 C.R.N.S. 261, 267-8
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
487
the confession. Accordingly, it is submitted that, despite the broad
scope of the judgment in Wray, the test of discretionary exclusion
expounded therein should not apply to confessions because it
could rarely operate to exclude a confession. Might this mean that
there exists no discretion to exclude confessions because of un-
fairness?
There are recent cases to be cited in support of a general ex-
clusionary discretion in England.266 There are also decisions in
which the discretion was not applied.265 English cases dealing with
a discretion to exclude for unfairness, where the impugned evidence
was a confession, are rare. In R. v. Stewart266 the trial judge ex-
cluded the confession of a mentally disabled suspect whose ad-
mission, though voluntary within the meaning of the confession
rule, could have little probative value in relation to its prejudical
effect 2 67 due to the suspect’s inability to comprehend and answer
questions. It was held to be unfair, and on the authority of an
Australian case 68 the judge exercised his discretion to exclude.
In R. v. Houghton2 9 the accused co-operated with the police by
informing on his accomplices in expectation of immunity from pro-
secution. It was found as a fact that the police never agreed to
such immunity nor did anything to arouse such expectation. At one
point in the investigation the accused was illegally detained by the
police for “further enquiries” with the apparent purpose of isolating
him from his accomplices and the stolen money. The admissibility
of Houghton’s statements to the police was in issue before the
Court of Appeal. Defence counsel argued for exclusion on the basis
that the police had led Houghton to believe that as an informer
he would be given immunity, and that the detention of his client
up to the time that he asked to speak to the detectives was unfair.
The Court recognized the existence of a general discretion to exclude
for unfairness.70 Furthermore, said the Court, evidence would
264 See Jeffery v. Black [1978] Q.B. 490 (D.C.); King v. The Queen [1969] 1
A.C. 304 (P.C.); Callis v. Gunn, supra, note 7; R. v. List [1965] 3 All E.R. 710
(York Assizes); R. v. Payne [1963] 1 All E.R. 848 (C.C.A.).
265 See, e.g., Jeffery v. Black, supra, note 264; King v. The Queen, supra,
note 264. See also Caplan, The Judicial Discretion to Disallow Admissible
Evidence (1970) 114 Sol. J. 945 and authorities cited therein.
26GSupra, note 91; see also R. v. Kilner, supra, note 91.
267 See R. v. Ovenall, supra, note 34, 26 where the same criterion is men-
tioned as pertinent to the exercise of the trial judge’s discretion to exclude
under the Judges’ Rules.
2 68 Sinclair v. The King, supra, note 92.
269 (1978) 68 Cr. App. R. 197 (C.C.A.).
270 Ibid., 206, citing Callis v. Gunn, supra, note 7.
McGILL LAW JOURNAL
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operate unfairly if it had been obtained by oppression or force, by
a trick,271 or by conduct of which the Crown ought not to take
advantage. 7 – Based upon this, the Court decided that in considering
whether to exclude a confession for unfairness the trial judge had
to ask himself “What led the accused to say what he did?” Since
in the circumstances of the case before the Court the police had
cautioned the accused and had not detained him incommunicado
in order to make him “crack”, but only to isolate him from the
stolen money, it was held that the trial judge had not exercised
his discretion wrongly. The Court added that it might have decided
differently if the accused were inexperienced or unintelligent or if
he had demanded and been denied the right to a solicitor.
Though the Court of Appeal in Houghton appears to recognize
the existence of a discretion, the criteria enumerated to guide its
exercise would probably be satisfied by plain application of the
confession rule and by the discretion thought to exist under the
Judges’ Rules. A similar observation can be made on the words of
Lord Parker C.J., affirming the existence of the discretion in Callis
v. Gunn 73 (one of the cases relied on in Houghton). His Lordship
stated that in determining whether the evidence would operate
unfairly, one should determine if the evidence had been obtained
oppressively by force. In speaking of the specific case of confessions
he stated that a much stricter rule applies. Lord Parker then stated,
in his own words, the confession rule. This, coupled with the judg-
ment in R. v. Houghton, makes one wonder if any field that a pur-
ported discretion to exclude relevant evidence in other areas might
cover (e.g., illegally obtained evidence) is not already allowed for
in the confession rule itself. Further, if a discretion to exclude for
breach of the Judges’ Rules does indeed exist, the debate as to the
existence of the fairness discretion may be moot in relation to con-
fessions because the purported discretion could not broaden the
ground already covered by the combination of the rule and the
discretion under the Judges’ Rules. It may be that the confession
rule in England (coupled as it may be with a discretion to exclude
for breach of the Judges’ Rules) is but a particular instance of a
general discretion in the trial judge to exclude evidence that would
operate unfairlyY” This approach becomes particularly tempting if
271 Ibid., citing Kuruma v. The Queen [1955] A.C. 197 (P.C.).
272 Ibid., citing King v. The Queen, supra, note 264.
2 7 3 Supra, note 7.
274See, e.g., R. v. Nichols [1977] Crim. L.R. 352 (Willesden Crown Ct),
where the trial judge confused inadmissibility in law (because of an in-
ducement) with the judicial discretion to exclude.
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
489
one is willing to accept a broader policy than trustworthiness for
the confession rule. On such a basis it follows that: (i) the rule is
designed to exclude evidence which, due to the manner in which
it was obtained, has dubious probative value and would operate
unfairly if admitted; and (ii) the rule is designed (at least in ex-
treme cases) to exclude evidence obtained in an unfair manner,
albeit that the conduct exhibited in obtaining it may not diminish
the statement’s probative value. Whether this statement accurately
reflects the law may depend very much upon the meaning of the
speeches in R. v. Sang.T5 In that case the House of Lords considered
the existence of a general discretion to exclude evidence which is
technically admissible. Upon a charge of uttering forged American
bank notes, defence counsel made a motion to the effect that all
evidence obtained through an agent provocateur be excluded by
the trial judge in the exercise of his discretion. It was common
ground that such exclusion would necessarily imply a directed
verdict of acquittal, as in the circumstances there would be no
remaining evidence upon which to base a conviction. The case
came before the House of Lords on a question certified by thd
Court of Appeal as to the existence of a discretion to exclude
relevant and probative evidence. Though evidence of confessions
was specifically excluded from the question, the House deemed it
necessary to speak of that matter as well. Despite unanimity on the
answer to the certified question, the various speeches are difficult
to reconcile with one another and it is not clear whether thei
discretion held to exist operates in the case of confessions, as an
appendage to the exclusionary rule, or whether the rule is only a
particular manifestation of the general exclusionary discretion.
Though their Lordships directed themselves to the existence of
discretion to exclude generally, the presentation here of their
Lorships’ opinions will, at the risk of embellishment, focus upon
confessions. It appears that Lord Diplock 7 6 and Viscount Dilhorne2 7
agree that the trial judge has a general discretion to exclude tech-
nically admissible evidence where its prejudicial effect outweighs
its probative value. Lord Diplock adds:
Save with regard to admissions and confessions and generally with regard
to evidence obtained from the accused after commission of the offence,
[the trial judge] has no discretion to refuse to admit relevant admissible
evidence on the ground that it was obtained by improper or unfair
means.278
275 Supra, note 38.
270 Ibid., 429 et seq.
2771 Ibid., 437 et seq.
278 Ibid., 437.
McGILL LAW JOURNAL
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Apparently, the kind of case Lord Diplock had in mind when
speaking of evidence obtained from the accused after commission
of the offence is exemplified in R. v. Barker,27 9 where an incriminat-
ing document, which the accused had given to revenue officials
upon an inducement, was excluded.80 Viscount Dilhorne, while
agreeing with Lord Diplock’s answer, stresses that except for ad-
missions and confessions the judge is not concerned with the
manner of obtaining evidence. Though Lords Salmon, Fraser and
Scarman express agreement with Lord Diplock’s answer to the
certified question, they appear to approach the issue differently
than the latter. They all appear to agree that there exists one
general discretion to exclude which is based on
the criterion
of fairness to the accused. In the view of Lords Salmon and
Fraser the discretion is not limited to instances of prejudicial
effect outweighing probative value. That is only one instance of
discretionary exclusion, as are cases where the evidence is obtained
from the accused himself28′ (e.g., confessions by threats and pro-
mises2 82). Both Lords Fraser 8 3 and Scarman 2
4 are explicit that
unfairness relates to the use of the impugned evidence at trial.
8
Before attempting to analyze the implications of Sang for the
law of confessions, it should be pointed out that the case, on its,
facts, is one of entrapment. Entrapment is not a defence under
the law of England, and as such it seems clear that their Lordships
would not recognize an exclusionary discretion that could operate
so as to let the defence of entrapment “in through the back door”.
Second, Sang cannot properly be viewed as a confession case, since
by definition the suspect would not know that an agent provoca-
teur is a police officer and thus, on the subjective view, the latter
is not a person in authority. This is not merely a narrow (and per-
haps trite) view of ratio decidendi, as these considerations caused
confessions to be excluded from the ambit of the certified question.
More importantly, it is submitted that these considerations must
have had some effect on the Law Lords’ approach to the issue. The
question as to a general discretion was answered on the issue of
improperly obtained evidence which is admissible without reference
to the manner of obtaining. It is suggested that the results may
have been different had the question of a general discretion arisen
279 [1941] 2 K.B. 381 (C.C.A.).
280 See R. v. Sang, supra, note 38, 434-5.
281 Ibid., 450 per Lord Fraser.
282 Ibid., 445 per Lord Salmon.
283 Ibid., 450.
284 Ibid., 452.
1981) RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
491
in the context of a confession, that is, evidence inadmissible by
reference to the manner of its obtaining.
The consensus in Sang concerning a discretion to exclude for
unfairness with regard to evidence of confessions is difficult to
ascertain. Their Lordships appear to agree that the accused has a
right to a fair trial and that the trial judge has a duty to ensure
that right 8 5 That duty gives rise to a discretion to exclude tech-
nically admissible evidence on the ground of unfairness.2 8 6 As to
the precise extent of that discretion, it is not clear on the basis of
the different speeches whether it is a broad general discretion 2s’ or
whether it is limited in scope to evidence of high prejudicial effect
but low probative value.288 It is also unclear, though it appears that
with the exception of confessions and admissions (and evidence
obtained from the accused which is akin thereto), the judge, in
exercising this discretion regarding unfairness, is not to concern
himself with the manner in which the evidence was obtained. 28 9
That is to say that the fairness which the judge is to ensure relates
to the trial and does not extend out of the court room to the pre-
trial investigatory state. There appears to be agreement that the
confession rule is a rule of fairness, though this view is not ex-
pressed in explicit terms by all the Law Lords. 290 It is less cleali
whether they view the confession rule as a particular instance of the
judge’s general discretion to exclude evidence that would be unfair
to admit, or as a separate and distinct rule that is nonetheless
rooted in the notion of fairness. In any event, there does seem to
be consensus that the confession rule is concerned with the manner
of obtaining evidence. As such it is exceptional in that the judge’s
concern for fairness is not limited to the use made of the evidence
in the court room; rather, it can be directed outside of the court
room to the manner in which the confession was obtained. But does
the confession rule, considered in the aforementioned manner, allow
for a discretion to exclude for unfairness to be appended to it; or
does it, by its very nature, subsume any ground that a judicial
285 Ibid., 436 per Lord Diplock, 439 per Viscount Dilhorne, 444 per Lord
Salmon, 447 per Lord Fraser, 455 and 457 per Lord Scarman.
286Ibid., 436 per Lord Diplock, 439 per Viscount Dilhorne, 444 per Lord
Salmon, 447 per Lord Fraser, 457 per Lord Scarman.
287 Ibid., 445 per Lord Salmon, 447 per Lord Fraser, 452 per Lord Scarman.
288 Ibid., 434 and 437 per Lord Diplock, 438 per Viscount Dilhorne.
289 Ibid., 436 per Lord Diplock, 440 and 441 per Viscount Dilhorne, 449-50
per Lord Fraser, 452 and 456-7 per Lord Scarman.
290 Ibid., 444 per Lord Salmon, 453 and 454 per Lord Scarman; see also
Lord Diplock who says at p. 436 that the rationale of the confession rule
is the right to silence.
McGILL LAW JOURNAL
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discretion to exclude for unfairness could purport to cover? If
the latter hypothesis is correct then there is no discretion to exclude
as such. Rather, the confession rule is the particular and ex-
ceptional manifestation of the fairness discretion as it applies to
confessions – particular because it is aimed at a specific type of
evidence, and exceptional because it is directed at the manner of
obtaining the evidence. If this is the law then the confession rule
applied without regard for its underlying policy 291 will not operate
to exclude statements obtained in circumstances not technically ob-
noxious to the rule, but nonetheless offensive to the rationale.
However, this construction is untenable since the minimum con-
sensus of the speeches in Sang and the answer to the certified
question conclude in the existence of some discretion. Given their
Lordships’ view that the case of confessions is special, it is difficult
to imagine that there exists no discretion at all in relation to con-
fessions. This becomes clear, it is submitted, when one considers
that if there were no discretion whatsoever the confession
in
Stewart could not have been excluded because of the accused’s
mental abnormality, even though it had little probative value.
The first hypothesis above (i.e., that there is a discretion to
exclude appended to the confession rule) raises the question of
the breadth of the discretion. There are, it is submitted, at least two
possibilities discernible from Sang. First, the only discretion existing
may be the narrow one outlined in Lord Diplock’s answer to the
certified question, that is, where probative value is trifling and
prejudicial effect substantial. By definition, such a discretion is a
matter of probity and applies to the use of the statement in the
court room; it is not aimed at the manner of obtaining, as is the
confession rule. There are both conceptual and practical difficulties
with such a construction. Such a discretion is essentially a function
of probity, since the prejudicial effect can only be determinant if
probative value is slight. If the confession rule has a wide policy
basis it seems awkward that a discretion to exclude should not
operate as a function of all the same rationales as does the rule
itself. Lord Diplock, it will be remembered, recognized the right-to-
silence rationale. It is also noteworthy that the Supreme Court of
Canada, which appears to accept only the reliability rationale, has
recognized such a narrow discretion relating to probative value.
From a pragmatic point of view, such a discretion would seldom
operate to exclude confessions the probative value of which in
relation to the issue of guilt is, by definition, high. The only type of
291 As directed by the House of Lords in Ping Lin, supra, note 2.
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
493
case which would give rise to exercise of the discretion is that
in which the statement is of low probative value because of the
accused’s state of mind.
The other obvious alternative is that the discretion to exclude
confessions for unfairness is wide, encompassing not only con-
siderations of probity but other considerations of fairness evoked
by the various rationales of the confession rule. If, as suggested
earlier, classifying the confession rule as one of fairness is an
implicit recognition of a wide underlying policy, then it seems
reasonable that the discretion be governed by the same considera-
tions of fairness evoked by the various rationales of the rule. That
is to say that, since the trial judge has a duty to ensure fairness
and a discretion to exclude for unfairness, and since the confession
rule is concerned with fairness in the manner of obtaining evidence,
a confession obtained unfairly, albeit not strictly in contravention
of the rule, can be excluded by the judge in his discretion. That
discretion, which stems from the same policy considerations which
give rise to the rule, is governed by the same rationales. Briefly
stated, a wide discretion appears logically consistent and pragmatic-
ally coherent with a broad view of the policy basis underlying the
(e.g.,
confession rule. It would allow for exclusion in hard cases
where a police subterfuge in extracting a confession is particularly
reprehensible though not in contravention of the rule or Judges’
Rules) without the necessity of embellishing the rule through
awkward applications and rationalizations. The Canadian case law,
it is submitted, offers proof of the difficulties that can arise when
only a narrow policy basis and discretion are recognized.2 92 Such
a wide discretion is workable, given the rationales as criteria for
its exercise and as evidenced by the Australian experience. It is not
overly lenient, as the accused bears the burden of persuasion for
exclusion on discretionary grounds.
In spite of the present author’s bias in favour of a wide discre-
tion, it must be stated that in England, given the incorporation
of the concept of oppression into the confession rule, and given
the apparent existence of a discretion to exclude for a breach of the
Judges’ Rules, the need for a wide exclusionary discretion is not
urgent. The ground that would be covered by such a discretion
rarely arises in actual cases. Nevertheless, it is submitted that a
wide exclusionary discretion attached to the confession rule should
be recognized in order to support, and maintain, consistency and
coherence with a wide policy basis underlying the confession rule.
292 See Ward v. The Queen, supra, note 95; Alward v. The Queen, supra,
note 47.
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Only such a discretion could operate to cover hard cases offensive
to the rationales of the rule.
VIII. Weight
The weight to be attributed to a confession is a matter determin-
ed by the trier of fact on the circumstances of each case. There is
no rule of law in England 293 or Australia 2
to support the view that
a conviction cannot rest wholly on a confession and this is probably
the case in Canada as well. If a jury convicts solely on the basis’
of a confession they must be convinced that it is true. 95
English law relating to reconsideration by the jury of evidence
going to voluntariness was for several years in a state of disarray 90
It is now clear that the law in England is correctly outlined in R. v.
Murray297 and R. v. Burgess.29 The admissibility of a confession
is decided by the judge; the jury considers its weight. It would be
wrong to direct the jury to disregard a confession altogether
because they are not satisfied beyond reasonable doubt that it is
voluntary. In determining what weight to attach to the confession,
the jury may consider all the circumstances surrounding
its
utterance, including evidence going to the voluntariness of the state-
ment. That is to say that the jury is even entitled to re-hear the
same evidence that was adduced on the voir dire, but only to aid
them in their decision of determining the confession’s probative
value. A jury might attach no weight to the confession but, ifl
properly instructed, the reason for this would be that they thought
it was untrue; it would not be so because they were not convinced
that the confession was voluntary. The Criminal Law Revision Com-
mittee would retain the law as stated above.2 99
Basto v. The Queen00 established that the law is to the same
effect in Australia, and indeed that case refused to follow R. v.
2B3 R. v. Mallinson [1977] Crim. L.R. 161 (C.C.A.).
294 Wright v. The Queen (1977) 15 A.L.R. 305 (Aust. H.C.).
205 Ibid.
296 See Cross, supra, note 89, 72-3; Hoffman, What Happened to the Voir
Dire (1967) 83 L.Q.R. 332; MacKenna, The Voir Dire Revisited [1967] Crim.
L.R. 336. ‘
29 7R. v. Murray (1951) 1 K.B. 391 (C.C.A.), approved in Chan Wei Keung
v. The Queen [1967] 2 A.C. 160 (P.C.).
298 [1968] 2 Q.B. 112 (C.C.A.), adopting Chan Wei Keung, supra, note 297;
see also R. v. Ovenall, supra, note 34, adopting Basto v. The Queen (1954)
91 C.L.R. 628 (Aust. H.C.); R. v. Murray, supra, note 297; Chan Wei Keung
v. The Queen, supra, note 297; R. v. McCarthy (1980) 70 Cr. App. R. 270 (C.C.A.).
299Supra, note 10, 67.
30 Supra, note 298; see also R. v. Mahoney-Smith [1967] 2 N.S.W.R. 154
(S.C.); R. v. Stafford (1976) 13 SA.S.R. 392 (S.C. in banco).
1981J RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
495
Bass. The jury should not be instructed to disregard a confession
because it is unconvinced that it is a voluntary statement,30′ but
they may hear any evidence surrounding the making of it, including
psychiatric evidence going to the suspect’s sanity at the time he
made the statement.302
It appears that the law is the same in Canada, though there are
no recent cases M03
IX. The doctrine of confirmation
A. Subsequent facts
The issue here is the extent to which an inadmissible confession
becomes admissible through confirmation of its contents by real
evidence found as a consequence of the confession. It would be
beyond the scope of this article to discuss the admissibility of real
evidence found as a consequence of an inadmissible confession.
With one exception, there have not been any major recent de-
velopments in the case law since this matter was exhaustively
treated in the doctrine.30 The exception is the judgment of the
Supreme Court of Canada in R. v. Wray3 5 which, without analysis
of the matter, confirmed that the law in Canada is correctly stated
in R. v. St. Lawrence,300 a decision of the High Court of Ontario.
That case held that the part of an involuntary confession confirmed
by the discovery of real evidence is admissible because the truth
of the statement is established by that evidence. Three comments
are proposed. First, as implied by Hall J. in his dissenting judgment
in Wray,3 07 the practice of blotting out those parts of the confession
not confirmed is a difficult task for the trial judge and presents an
awkward statement to the jury. Second, the judgments in St.
Lawrence and Wray assume that the rationale of the confession
rule is trustworthiness, which, as has been pointed out, is pro-
bably not the only policy basis for the confession rule. It will be
remembered that Wray was one of the judgments cited in support
of the view that the Supreme Court of Canada has been subverting
301 See Basto v. The Queen, supra, note 298, 641, disapproving R. v. Bass,
supra, note 234.
S02 Jackson v. The Queen, supra, note 70.
303 See R. v. McAloon (1959) 30 C.R. 305 (Ont. C.A.), approved in Chan Wei
Keung, supra, note 297.
quent Facts (1956) 76 L.Q.R. 209.
301 See Cowen & Carter, supra, note 26; Gotlieb, Confirmation by Subse-
305 Supra, note 43.
3 00 Supra, note 44.
3o0 Supra, note 43, 301 et seq.
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the rule for the rationale of reliability. 08 This leads to the third
point. On the premise of the reliability rationale, the reasoning in
St. Lawrence seems logical. However, the premise that the reliability
rationale is the exclusive policy basis for the confession rule is, it
is submitted, false: hence the incorrect outcome of the judgment
of replacing the rule with the reliability rationale. It is one thing
to embrace the reliability rationale, it is another to establish iAi
as the rule. If St. Lawrence and Wray do not replace the rule, then
they could not have been decided as they were. If the Ibrahim rule
is to govern the admissibility of confessions, as the House of Lords
said in Ping Lin then a confession not held to be free and voluntary
is inadmissible, regardless of its confirmation by collateral evidence.
B. The accused’s testimony on the voir dire
If Wray and St. Lawrence are correct, would it not be possible
for an involuntary confession to become admissible because its
reliability is confirmed by its maker upon his testifying at the
voir dire? With the allowance of the question “Is it true?”, such
confirmation becomes a very real possibility. In an indirect way,
Cartwright C.J.C., in his dissenting reasons in Wray, pointed out that
upon the reasoning which would admit the confirmed part of the
confession in Wray, there is a possibility (if only to avoid a logical
inconsistency) that an involuntary statement admitted by the
accused under oath to be true would equally become admissible in
evidenceY9
There is at least one recent Canadian case, R. v. Magdish,10 where
the Crown attempted to adduce the accused’s acknowledgement,
given on the voir dire, that his confession was true. It should be
noted that the outcome of the voir dire was that the confession
was admissible. The Crown argued that, in so far as the trial
within a trial is a separate judicial proceeding, the judgment of the
Supreme Court in Boulet allows an admission made in such a pro-
ceeding to be adduced as of right without the necessity of a further
voir dire. The trial judge disagreed. He held that the admission was
not admissible, since to allow this would inhibit the accused from
testifying on the voir dire, which he should be allowed to do
without waiving his right to remain silent at the trial. It was also
held that Boulet did not apply, since in that case Beetz J. justified
his reasons by saying that the accused could have claimed the
308 For a similar view, see Roberts, supra, note 50.
s9 Supra, note 43, 279.
$10 Supra, note 231.
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
497
privilege against self-incrimination. The trial judge in Magdish felt
that the privilege did not apply to the trial, of which the voir dire
forms a part. All he appears to have said is that he did not think
that the voir dire is a judicial proceeding which is separate and
distinct from the trial proper. The judge did not, however, rule out
the possibility of the accused being cross-examined at trial upon
statements made during the voir dire testimony.
It would appear appropriate to discuss also at this point the
possibility of using at trial the accused’s admission made at the
voir dire as evidence of a new confession or as a previous in-
consistent statement. Though this does not strictly relate to the
doctrine of confirmation, the issues arising appear to have been
conflated in the sparse case law, and hence it is convenient to treat
this matter here.
Continuing, then, with the Canadian cases, in R. v. Van Dongen31′
the accused, charged with possession of stolen property, admitted
on the voir dire that he knew the articles in his possession were
stolen. The judge held the confession inadmissible at the voir dire
but the trial, by a judge sitting without a jury, ended in a con-
viction. It was common ground on the appeal that the admission
was the only evidence of the accused’s knowledge that the property
had been obtained by theft. Though the appellate Bench of three
agreed that the conviction should have been quashed, Robertson J.A.
did not think that the trial judge misdirected himself by considering
voir dire evidence on the issue of guilt. He felt that since the voir
dire is not a separate proceeding, but part of the trial, and since
the question “Is it true?” is permissible, then evidence given on
the voir dire may be considered at the trial. This judgment is
empirical proof of the danger of DeClercq, and an effective reminder
that this decision may imply the breakdown of the distinction
between the trial and the voir dire. Van Dongen, however, is pro-
bably not the law in Canada. In R. v. Gauthier312 the Supreme Court
was faced with an acquittal, where the trial judge had pronounced
that on all the evidence, including the accused’s voir dire testimony,
he entertained a reasonable doubt. Pigeon J., speaking for the
majority, said that even at a trial by judge alone, evidence given
on the voir dire, albeit favourable to the accused, is not evidence
at trial. Presumably, this judgment would also govern the use at
trial of the answer to the question “Is it true?”. But, though the
accused’s testimony at the voir dire is not evidence at the trial, could
” (1976) 26 C.C.C. (2d) 22 (B.C.C.A.).
2 Supra, note 175, foll’d in R. v. Thorne (1978) 15 NfId & P.E.I. R. 168
1
3
(Nfld S.C., App. Div.).
McGILL LAW JOURNAL
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it be used as a previous inconsistent statement to impeach his
credibility? Gauthier does not treat the question specifically and
Magdish313 explicitly left the possibility open.
In Australia these issues were considered by the full Bench of
the Supreme Court of New South Wales in R. v. Wright.314 Upon
cross-examination during the voir dire, the accused admitted the
crime. The confession was held inadmissible by the trial judge on
discretionary grounds. At trial, the Crown sought to adduce ad-
missions made by the accused at the voir dire. On appeal the Court
found that the Crown had a right to lead the evidence, subject to
the trial judge’s discretion to disallow it. Bray C.J. felt that, since
the decision on use of the accused’s voir dire testimony would apply
to all witnesses, it might hamper the defence to rule out such use
if, for example, it could not cross-examine a detective at trial on an
inconsistent statement made at the voir dire. Furthermore, what
the accused says in the witness box is voluntary,315 and therefore
if he confesses at the voir dire that confession is admissible at
trial. However, Bray C.J. qualifies this by stating that if the original
statement is held inadmissible, the Crown cannot by use of the
accused’s confession at the voir dire tell the jury that he confessed
to the police:
There may be cases where the accused’s admission of the crime in the
cross-examination on the voir dire is inextricably tied up with the
making of the confession to the police. In such a case it should pre-
sumably be excluded before the jury, not because of its intrinsic
nature as a confession to the crime, but because it contains evidence
of an inadmissible confession to the police.316
Working on the premise that it would be irrelevant for the Crown
to ask the accused on the voir dire if he committed the crime, but
relevant to ask if his statement to the police was true, as going to
credibility, it appears from Bray C.J.’s qualification that only in
rare cases could the Crown prove at trial an admission made by
the accused at the voir dire. This would appear to be the case
whether or not the admission was adduced as confirmation of the
original confession made to the police, or as a new confession.
However, Bray C.J.’s qualification was not accepted by his brother
Chamberlain J., who disagreed that a voir dire admission should be
excluded when it is tied up with the making of the confession to
the police:
313 Supra, note 231, 380.
314 Supra, note 54.
315 See Stewart v. The King (1921) 29 C.L.R. 234 (Aust. H.C.).
316Supra, note 54, 263.
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
499
If it becomes necessary to prove what was said to the police in order
to understand a confession made in evidence on the voir dire, then what
was said to the police becomes admissible even if it could properly be
excluded on other grounds.3 17
This dictum would appear to favour a doctrine of admissibility
through confirmation 318
The decision in Wright would probably allow the accused’s voir
dire testimony to be used for purposes of cross-examination at
trial in order to test consistency. There is also judicial support for
such a procedure in Queensland.3 19
This writer knows of no recent English authority dealing directly
with the issues presently being discussed. However, the Privy
Council, in Wong Kam-ming v. The Queenm held that the Crown
could not seek to adduce a confession at trial even if confirmed by
the accused’s admissions during the voir dire, nor could the Crown
introduce evidence of those admissions. Their Lordships felt that to
hold otherwise would infringe upon the privilege against self-
incrimination. Implicit in this holding is that the accused could not
claim the privilege at the voir dire, and hence that the voir dire is
not a judicial proceeding distinct from the trial.3 21 This deduction
is consistent with the refusal of the Privy Council to follow Ham-
mond and DeClercq. As long as the view is maintained that the
voir dire is not a separate judicial proceeding, 21a it appears that
the English courts would exclude from the trial evidence of ad-
missions made by the accused at the voir dire. The integration of
the voir dire into the trial is of fundamental importance, for it will
be remembered that evidence of admissions made by the accused
at a first trial have been held admissible at a retrial upon the same
indictment.3s The analogy is obvious.
Phipson maintains that an admission made at the voir dire
can be used at trial qua admission and as a previous inconsistent
statement. 2 3 However, no authority is cited in support of this view.
317 Ibid.
318 Other Australian authorities support the use at trial of an admission
made by the accused at the voir dire: see R. v. Toomey, supra, note 55; R.
(1955, unreported Tasmanian trial judgment), cited in Neasey,
v. Monks
Cross-examination of the Accused on the Voir Dire (1960) 34 A.L.J. 110, 111-2.
319R. v. Gray, supra, note 217.
3 2 0 Supra, note 41.
821 However, their Lordships did emphasize (ibid., 258)
the importance
of maintaining a distinction between the issue of voluntariness (decided at
the voir dire) and the issue of guilt (decided at trial).
321a See R. v. Watson, supra, note 194a.
322R. v. McGregor, supra, note 162.
3 2 3 Supra, note 182, 800.
McGILL LAW JOURNAL
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Wong Kam-ming held that the accused could be cross-examined on
an inconsistent statement made at the voir dire but only if the con-
fession had been ruled admissible. Their Lordships felt that no
legal principle prohibits this and that an inconsistent statement
made at the voir dire is as proper a subject for cross-examination
as any other previous inconsistent statement. It will be remembered,
however, that their Lordships, in not following Hammond and
DeClercq, indirectly preclude the use of a statement going to the
truth of the confession. There is no reason why this view of their
Lordships is inconsistent with a view that the voir dire is not a
separate proceeding since there appears to be nothing to preclude
eliciting inconsistencies in statements all of which arise in the
witness’s trial testimony. Their Lordships’ reasons for not allowing
cross-examination as to inconsistency when the confession is ex-
cluded was stated as being the impossibility in principle of distin-
guishing between such cross-examination on the basis of the voir
dire and cross-examination based on the contents of an excluded
confession.3 24 Is this, coupled with the overruling of Hammond
and DeClercq, to be interpreted as support by the Privy Council
of the view that the confession rule is sufficiently broad to exclude
the use of a confession for any purpose unless first held admissible
on the voir dire?
C.
… by other evidence adduced at trial
It would seem trite to state that other evidence adduced at
trial can be used to confirm the truth of an admissible confession.
However, what are the considerations involved when the accused
denies that the (admissible) confession was in fact made? Since
the question is one of fact for the jury, the issue only arises as one
of law in the context of the trial judge’s direction to the jury. Such
an issue came before the High Court of Australia in Burns v. The
Queen.A5 Almost a year after an armed robbery the accused was
arrested and taken to a police station where he allegedly made
incriminating admissions in answer to police questioning. The
police prepared a record of interview which was not signed. At trial
they gave oral evidence of the alleged admissions. The defence con-
ceded at trial that the accused had new wealth after the robbery
but only the alleged confession linked this fact with the robbery.
The accused denied having made any confession to the police. It
was contended on appeal by the defence that, inter alia, the trial
32 4Supra, note 40, 258-9.
32 Supra, note 204.
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
501
judge failed to direct the jury that the evidence of the accused’s
new wealth was irrelevant to the issue of whether a confession
was in fact made. The majority of the High Court dismissed the
appeal stating that evidence that the confession if made was true
is relevant to whether it was in fact made. Thus, their Honours held
that the fact that the accused to the knowledge of the police was
wealthier after the robbery made it probable that the police would
question him to this effect and was therefore relevant to the issue
of whether the accused was questioned at all. However, their
Lordships added, albeit obiter, that the trial judge should have
warned the jury not to give undue weight to this:
Where an accused by his confession admits facts not then known to his
interrogators which are subsequently found to be true, this circumstance
affords strong evidence that the confession was in fact made. Where,
however, the accused by his confession admits only facts already known
to his interrogators the probative value of the truth of what is admitted
on the issue whether the confession was in fact made is less cogent and it
should in general be excluded from the jury’s consideration of that
issue in fairness to the accused because its prejudicial effect in the
minds of the jury may well outweigh any probative value it has.3 26
The second limb of this “test” is of course contrary to what their
Honours actually held in Burns. The majority felt that the change
in the accused’s financial position had special significance on the
facts of the case since it went to the issue of whether the accused
was truthful when he denied having been questioned by the police.
The concurring reasons of Murphy J. merit mention. Similar
to the majority, he stated that if part of an alleged confession is
true that does not tend logically to prove that the accused made the
statement. However, if the fact (of the new wealth) was not already
known to the police then it would be relevant to whether the con-
fession was made. His Lordship was careful to distinguish the case
from “subsequent fact cases” where the subsequent fact could only
have been discovered by the police if the ,confession was made.
The type of reasoning to which Burns may give rise becomes
dangerous in the situation where the police did have prior know-
ledge of the fact. Murphy J. points this out in his enumeration of
the contentions of the use that the new wealth in Burns could have
had, to decide if the confession was made:
1) The existence of new wealth and police knowledge of that fact might
have increased the likelihood that the police would ask questions
about it;
2) The existence of new wealth supports the police account of the way
in which the confession came to be made (i.e., that they confronted
the accused with the fact and he broke down and confessed);
328 Ibid., 100.
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3) The knowledge of the new wealth by the police provided them with
opportunity and inducement to concoct the confession (as the accused
claimed) 327
It might seem clear that if the police can be shown not to have
had knowledge of a fact disclosed by a confession before the con-
fession was made then that fact would be evidence that the con-
fession was made. However, upon application of the Burns test,
the High Court seems to have held in Matusevich v. The Queen” –
that this is not the case. Matusevich was accused of murdering a
fellow prisoner. He denied the truth of a statement allegedly made
to the police and attributed to him by the Crown. The Crown wished
to adduce at trial (as going, inter alia, to motive) evidence that the
victim had been responsible for incriminating prison escapees. The
Crown contended inter alia that this fact was relevant to whether
the accused had made the statement since the police were not aware
of it before the alleged confession. The High Court held on applica-
tion of Burns that the evidence that the victim was the informant
was inadmissible since it was not established that the police already
knew this fact before the alleged confession was made. However,
is it not just as logical to say that if the police did not have know-
ledge of the fact prior to the making of the confession then in-
dependent proof of that fact tends to prove the truth of the con-
fession and hence that it was made? This reasoning admittedly
breaks down in so far as the police could still have concocted the
confession on learning the fact after the time of the alleged making
of the confession, but before the trial. On the basis of the confusion
to which all the above reasoning gives rise, it is respectfully sub-
mitted that the test in Burns should not have been laid down by the
High Court but rather the situation should have been left open
and reviewed on a case-to-case basis.3 The test laid down
in
Burns may give rise to more appeals based on the trial judge’s
directions than it avoids.
The Australian Law Reform Commission, aware of the difficul-
ties that can arise when the content of statements is disputed, has
recommended a series of measures aimed at guaranteeing the trust-
worthiness of statements adduced in the court room. 8 0
327 Ibid., 102.
3 28 Supra, note 204.
39 See R. v. Burke (1979) 3 Crim. LJ. 112
(C.C.A., N.S.W.) where the
Court held that the fact that the police were in possession of all the details
of the crime did not make the confession of low probative value; this was
merely a factor the jury could bear in mind in determining whether the
confession was made or not.
Mo Supra, note 33, 70-4.
19811 RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
503
X. Conclusion
Consideration of the confession rules evokes various policy
bases. While these rationales can be found beneath other rules
in the law of evidence, they tend to converge on the confession
rule such that confessions, though having points in common with
other kinds of evidence, remain very much an entity unto them-
selves. Discussions of improperly obtained evidence, hearsay and
the privilege against self-incrimination may all be related to an
examination of confessions. However, the underlying policy con-
siderations of any one of these notions cannot give a complete
explanation of the policy basis of the confession rule. Whatever
be the correct historical argument for the development of the con-
fession rule, it must be accepted that today several rationales merit
consideration. Without such acceptance, policy uncertainties and
ambiguities will continue to give rise to inconsistent and perhaps
unwise decisions. The Australian courts have in their wisdom ac-
cepted a broad policy basis underlying the confession rule. In
Canada, exclusive acceptance of the reliability rationale has resulted
in a case law which, though perhaps demonstrating logical con-
sistency, is the least appealing of the three jurisdictions treated
in this article. In terms of underlying policy it is more difficult
to identify a definite pattern in the English decisions. Lord Hail-
sham appears to have been sensitive to this in his speech in Pine,
Lin, when he said that “on the subject of confessions, English law
is not wholly rational”.’%
Postscript
The Supreme Court of Canada rendered judgment in Rothman
v. The Queen on 2 March 1981, after this article went to press.* The
accused, who had been arrested for possession of hashish for the
purposes of trafficking, refused an invitation by the police to make
a statement. He was placed in a cell and was later joined there by
a police officer acting undercover. After some chat between them,
Rothman made an incriminating statement to the officer.
S31 Supra, note 2, 599.
* See note 115 of the text, supra. The judgment has been reported at (1981)
35 N.R. 485.
McGILL LAW JOURNAL
[Vol. 26
The issue before the Supreme Court of Canada was whether
the undercover policeman was, vis-&-vis the accused, a person in
authority, and hence whether the confession rule was applicable
to the statement. The majority of the Court, speaking through
Martland J., confirmed the Ontario Court of Appeal’s decision that
the test is subjective. Since Rothman did not know that his cell-
mate was a person in authority, the statement was admissible
without application of the confession rule. It is submitted that
the decision of the majority is further support for the Supreme
Court’s refusal to acknowledge a wide policy basis underlying
the confession rule. Martland J. expressly rejects a rationale based
on the maxim nemo tenetur seipsum accusare stating that the
privilege against self-incrimination can only be claimed by a wit-
ness in open court. Furthermore, when compared with the opinions
of Lamer J. (concurring in the result) and Estey J. (dissenting,
Laskin C.J.C. concurring therein),
it becomes apparent that the
majority also rejects any rationale based on concerns for con-
trolling police conduct or for bringing the administration of justice
into disrepute.’
The reliability rationale is clearly consistent with the decision
of the majority in Rothman. However, Martland J. takes care to
point out that the confession rule does not test a statement’s
trustworthiness but rather its free and voluntary nature. In that
context his Lordship added that Rothman’s ignorance of his cell-
mate’s true identity did not affect the voluntary nature of the
statement. His Lordship states that Alward,2 Horvath,3 Ward4 and
Nagotcha5 did not change the confession rule. In the closing words
of his judgment, however, Martland J. may have left the door open
to the doctrine of oppression.
Lamer J. concludes his intricate and interesting opinion by
formulating the following test:
1. A statement made by the accused to a person in authority is in-
admissible if tendered by the prosecution
in a criminal proceeding
unless the judge is satisfied beyond a reasonable doubt that nothing
said or done by any person in authority could have induced the accused
to make a statement which was or might be untrue;
2. A statement made by the accused to a person in authority and
tendered by the prosecution in a criminal proceeding against him, though
Martland J4 in R. v. Wray [1971] S.C.R. 272.
‘A stance which is consistent with the reasons of the majority given by
2 Alward & Mooney v. The Queen [1978] 1 S.C.R. 559.
SHorvath v. The Queen [1979] 2 S.C.R. 376.
4Ward v. The Queen [1979] 2 S.CR. 30.
5 Nagotcha v. The Queen [1980] 1 S.C.R. 714.
1981] RECENT DEVELOPMENTS IN THE LAW OF CONFESSIONS
505
if its use
elicited under circumstances which would not render it inadmissible,
in the proceedings would,
shall nevertheless be excluded
as a result of what was said or done by any person in authority in
eliciting the statement, bring the administration of justice into disrepute.6
This rule is virtually identical to that proposed by the Law
Reform Commission of Canada1 at a time when Lamer J. acted as
vice-chairman of that body. The test explicitly incorporates con-
siderations of reliability and bringing the administration of justice
into disrepute. Implicit in the test is the controlling of police con-
duct since both arms of the test operate on the basis of something
“said or done” by a person in authority. Lamer J. also points out
that the right to remain silent in the face of police questioning
rests not on the privilege against self-incrimination but on the
absence of an obligation to speak. His Lordship adds, however, that
an infringement of the latter is a factor to be considered in the
operation of his test. Lamer J.’s reasons are an obvious break with
the traditional position of the Supreme Court. However, upon
application of this test, his Lordship would not have excluded
Rothman’s statement. He did not feel that the police conduct in
casu was such as td bring the administration of justice into disre-
pute.
In dissent Estey J. expressed the view that the rationale under-
pinning the confession rule is the concern for the integrity of the
administration of justice. His Lordship added that the requirement
of voluntariness applies not simply to the articulation of the words
but to the desire to make a statement to persons in authority. On
the facts, Rothman had expressly declined, as was his right, to say
anything to the police. Given this view of the rule and the accused’s
initial refusal to speak, Estey J. held that the statement elicited by
the “cellmate” was not voluntary.
What may have appeared as the beginning of a due process
rationale in Horvath and Ward has not come to pass.8 The decision
of the majority of the Supreme Court of Canada in Rothman is
consistent with previous decisions of that court foresaking all but
the reliability rationale as the underlying policy basis of the con-
fession rule.
6(1981) – 5 N.R. 4,85, 52 -4.
7 Report on Evidence (1975), 15, 16.
8 See Bushnell, The Confession Cases: Erven, Horvath and Ward –
Towards a Due Pro&! s Ratiotiale (1980) 1 Supreme Ct L. Rev. 355.
