R v John Kahyata ((1963 - 1964) Z and NRLR 84) [1964] ZMHCNR 16 (25 April 1964)

R v JOHN KAHYATA (1963 - 1964) Z and NRLR 84 1963 - 1964 Z and NRLR p84 [Before the Honourable Mr. Jus�ce CHARLES on the 25th April, 1964.] Flynote Voluntary statements of accused persons - proof that such statements were not induced by threats or promises - burden of proof upon the prosecu�on. Headnote An incrimina�ng statement by an accused will be excluded from evidence if it was induced by a person in authority. " Induced " is broadly defined, and may include prolonged ques�oning as well as threats or promises. The burden of proving that a confession is voluntary is on the prosecu�on. The strict applica�on of the law against coerced confessions is cons�tu�onally important. Cases cited: (1) R v Baldry (1852) 2 Den. 430; 169 ER 568. (2) R v Thompson [1893] 2 QB 12. (3) Ibrahim v The King [1914] AC 599. (4) Sparks v Reginam [1964] 1 All ER 727. (5) R v Lloyd (1834) 6 C & P 393; 172 ER 1291. (6) R v Green (1834) 6 C & P 655; 172 ER 1406. (7) R v Joyce [1957] 3 All ER 623. (8) R v Sartori (1961) Crim. Law Review 397. (9) R v McLintock (1962) Crim. Law Review 549. (10) Wendo v The Queen (1963) 37 ALJR 77. (11) Woolmington v the Director of Public Prosecutions [1935] AC 462 (HL.) A B Mitchell - Heggs, Assistant Crown Counsel for the Crown J J McGrowther for the accused Judgment Charles J: In this case the Crown adduced evidence of three incrimina�ng statements by the accused which, as a result of inquiry on the voir dire, or " trial within a trial ", I declined to receive. I now give my reasons for so doing. The statements of which evidence was excluded were a writen statement made by the accused to a police officer a�er arrest and charge and cau�on, an oral statement made by the accused to the same police officer when the later took the former to a village three days a�er arrest, and a writen statement made to the same police officer a week later when the accused was formally charged and cau�oned. It is established law, in my judgment, that evidence of an incrimina�ng statement by an accused person is not admissible unless the following is established to the sa�sfac�on of the trial judge, if necessary a�er holding a voir dire or trial within a trial: (a) That the incrimina�ng statement was not preceded by any words or acts on the part of a person in authority which might 1963 - 1964 Z and NRLR p85 CHARLES J have suggested to the accused that, when the opportunity occurred for making a statement, it would be his duty or would be of temporal advantage for him to do so, or it would be of temporal disadvantage for him not to do so. (b) That, if such words or acts preceded the incrimina�ng statement, they did not induce the accused to make it. The leading authori�es for that statement are Regina v Baldry (1852) 2 Den. 430, and Regina v Thompson [1893] 2 Q. B. 12, both of which have received the approval of the Privy Council in Ibrahim v The King [1914] A. C. 599, and again only recently, in Sparks v Reginam[1964] 1 All ER 727. According to these authori�es the basis upon which evidence of an incrimina�ng statement is excluded in the absence of proof of either of the two condi�ons men�oned is not that the law presumes such statements to be untrue in the absence of such proof, but because of the danger which induced confessions or admissions present to the innocent and the due administra�on of jus�ce. It is per�nent to note that the common law rules on the subject of voluntary confessions did not become crystallised un�l a�er the establishment of a regular police force in England, and there are authori�es before then for the proposi�on - which is now untenable - that evidence of an incrimina�ng statement was not admissible if the statement had been induced by a person who was not a person in authority. (See Halsbury 3rd edi�on, Vol. 10, page 469, Note (p) where the authori�es are cited.) It is also per�nent to note that the basis of exclusion is inconsistent with two other proposi�ons which, consequently, cannot now be regarded as sound law. The two here�cal proposi�ons may be expressed jointly as being that evidence of an incrimina�ng statement is admissible if it is established (i) that, although it was induced by a person in authority, the inducement was such as was unlikely to produce an untrue statement, or (ii) that the inducement did not relate to the charge or accusa�on against the accused, that is, the inducement was not one likely to create in the accused's mind the hope of betering or the fear of worsening his posi�on in rela�on to the charge or accusa�on if he did or did not make a statement. In Regina v Thompson, sup., it was held expressly that the likelihood of an inducement not resul�ng in an untrue confession was immaterial, while the whole tenor of the judgment in that case is against an induced confession being admissible if the inducement did not relate to the charge. The dis�nc�on between inducements which relate to the charge and inducements which do not relate to the charge is ar�ficial and imprac�cable. The most obvious forms of inducement which vi�ate confessions are physical torture and prolonged ques�oning under the so - called third degree process whereby the will of a suspect not to incriminate himself is broken. Yet those forms of inducement do not operate by holding out any hope or fear as to the accused's posi�on in rela�on to the charge or accusa�on but operate by inspiring the unfortunate vic�m with the hope of relief from immediate physical or mental pain. The heresy was first propounded in Rex v Lloyd (1834) 6 C. & P. 393, and Rex v Green (1834) 6 C. & P. 655, and is not supported, so far as I am aware, by a single decision since then un�l it was revived by Slade, J, in R v Joyce [1957] 3 All ER, 623. The later decision, in my judgment, was manifestly wrong in so far as it was based on the alleged inducement not being one rela�ng to the charge. 1963 - 1964 Z and NRLR p86 CHARLES J The applica�on of the law rela�ng to incrimina�ng statements is, no doubt, one which places a heavy burden on the police in conduc�ng their inves�ga�ons. Nonetheless, it is, in my opinion, of cons�tu�onal importance, far transcending the proof of guilt of guilty individuals, that it be not whitled down and that it be applied by the courts strictly; to do otherwise will open the door to the Inquisi�on and the Gestapo, and to the police usurping the func�ons of the courts. It is also per�nent to recall the remarks of Cave, J, in Regina v Thompson, supra. "I always suspect these confessions, which are supposed to be the offspring of penitence and remorse, and which are nonetheless repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner's guilt is otherwise clear and sa�sfactory: but when it is not clear and sa�sfactory the prisoner is not infrequently alleged to have been seized with the desire, born of penitence and remorse, to supplement it with a confession, and this desire itself vanishes as soon as he appears in a court of jus�ce." Whether the onus of proof, which the Crown has on a voir dire or trial within a trial to sa�sfy the judge as such that a challenged incrimina�ng statement was uninduced by a person in authority, is to sa�sfy the judge beyond reasonable doubt or only on the preponderance of probabili�es is a ques�on which I leave open. It appears to be the subject of conflic�ng authority, there being English decisions, apparently, that the heavier onus applies (Regina v Sartori, 1961, Criminal Law Review 397, and Regina v McLintock, 1962, Criminal Law Review, 549), while the High Court of Australia has held that the lighter onus applies (Wendo v The Queen (1963) 37 A. L. J. R 77). In the past it has always been my prac�ce to apply the heavier onus, as being in accordance with Woolmington's case [1935] A. C. 462 (H. L.), but it may be that Woolmington's case does not apply to a trial within a trial, as the High Court of Australia has held. In this case the police officer who took the three incrimina�ng statements was a most unsa�sfactory witness, and I was unable to determine from his evidence, even on the balance of probabili�es, whether or not he had obtained the first writen statement a�er having obtained an oral admission of guilt by ques�oning which was prolonged to the extent of being an inducement or by some other form of inducement. The district messenger, who also gave evidence, did not carry the mater further. Consequently, and having regard to the accused being an uneducated villager and to the administra�on of a cau�on too o�en being done as a meaningless piece of ritualism, I was not sa�sfied that the first statement was made voluntarily. I was also not sa�sfied that the second statement - an oral one - was made voluntarily as the police officer admited that he had not administered a new cau�on between it and the first but relied upon that which had preceded the first writen statement. It may be that the second statement was legally admissible as it was connected with the finding of certain incrimina�ng objects. I found it unnecessary to decide the point, 1963 - 1964 Z and NRLR p87 CHARLES J which is s�ll controversial, as I was sa�sfied, having regard to the unsa�sfactory evidence of the police officer with reference to all the statements, that it should be excluded in the exercise of my discre�on. With regard to the third statement, I was unable to determine from the evidence that proper steps had been taken in administering the cau�on which preceded it to ensure that the effect of any inducement which had led to the first statement had been removed. The probabili�es are that such steps were not taken and that the leaving of the accused in a prison cell for a week a�er he had already incriminated himself, so that he had had ample �me to consider his case as hopeless, was also an inducement.