ADMISSIBILITY OF CONFESSION AND THE RIGHT AGAINST SELF-INCRIMINATION.

PAPER PRESENTED IN CRIMINAL LAW WORKSHOP 2018.

Asanga Bodaragama, LLM (Colombo)

Resident Magistrate

Judicial Department,

Fiji.
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1.0 INTRODUCTION-

The criminal justice system in Fiji inherited most of its features from the colonial rulers
of Britain. The administration of justice system in Fiji protects the rights of the accused
person in a highest terms in most aspects. Right to be presumed innocent until proven
guilty according to the law1 and right to a fair trial2, right to communicate and
representation by lawyer3, right to remain silent4 in the Dock during the trial, and not
to be compelled to make any confession or admission that could be used in evidence
against him5 are some of the rights protected by the Constitution.

Restrictions imposed upon the admissibility of a confession made by an accused is an

important evidentiary rule that protects the rights of any accused. These restrictions,
which were developed through statutory provisions, judicial precedents and age old
legal traditions in England and other commonwealth jurisdictions found its way to
criminal justice system in Fiji and forms an integral part of the system.

An accused upon his arrest after being cautioned of his rights may make a voluntary
statement of facts to the police or to the arresting authority. Such a statement may
contain an admission stating or suggesting the inference that he had committed the
alleged offence, thereby making it a confession.

The general rule regarding the admissibility of a confession is that confession is

admissible in evidence, subjected to certain conditions. Since every confession is also
an admission, rules regarding admissibility of admissions would also apply thereof.
However, the admissibility of a confession in criminal trials is far more restricted by
certain statutory provisions (in some jurisdictions) and certain judicial pronouncements
that are developed over the years under the common law.

2.0 CONFESSION – IT’S HISTORICAL BACKGROUND -

Confession is in its simplest interpretation is “a formal statement admitting that one is

guilty of a crime”. The concept of confession has a long historical background. It bears
a close connection with the concept of interrogation or questioning of suspects.

1
Article 14(2) (a) of the Constitution of Fiji.
2
Article 13, 14 and 15 of the Constitution of Fiji.
3
Article 13(1) (c) of the Constitution of Fiji.
4
Article 13(1) (b) of the Constitution of Fiji.
5
Article 13(1) (d) of the Constitution of Fiji.
 3

The practice of interrogating subjects for their alleged involvement in crimes existed
even during the great Roman and Greek empires. However, it often tainted with the
use of torture.

Among the Greeks and under the Roman Republic, torture was almost entirely confined
to slave community, and the rule was that no free citizen would be subjected any
torture at any time. In Greece, it was thought to be the only way to elicit the truth
from a slave as to whether he had committed a crime or not. The Greek philosophers
were of the view that evidence of a slave given under torture was always true, whereas
evidence given freely was often false. The other reason for torturing slaves is to be
found in the belief that slaves, being absolutely at the mercy of their masters, would
naturally testify in accordance with the masters' wishes, unless some strong incentive
to speak the truth were brought to bear on them. The law was that evidence of an
untortured slave was suspected of to be of falsehood.6

In England, the practice of torturing suspects in order to extract information on their

involvement on alleged crimes was the common practice until it was abolished in
1709.7 Gradually, the practice of torture was ceased to exist, and the emphasis shifted
to threats. However, with the development of laws on human rights and rights of
accused the practice of torturing/threatening them in order to extracting information
was systematically withered away.

However, it is no secret that recording of confessions by using various torturous

methods still being practiced in many jurisdictions despite the tireless works of human
rights activists and exhaustive legislative protection and international legal framework
given to suspects by different legal regimes.

3.0 CONFESSION AS A RELIGIOUS CONCEPT-

In a religious perspective confession is the admission of one’s sins (sinfulness) or

wrongs. In many of the foremost religions of the world the concept of admitting one’s
sins or wrongs is recognized. According to Jorge J.E. Gracia, the distinguished professor
in the Department of Philosophy of State University of New York;

“In one sense it is the acknowledgment of having done something

wrong, whether on purpose or not. Thus, confessional texts usually
provide information of a private nature previously unavailable. What a

6
W.W. Buckland, A Text book of Roman Law; From Augustus to Justinian, (Cambridge University Press 1963), 657p.
7
Treason Act, 1708 (UK).
 4

sinner tells a priest in the confessional, the documents criminals sign

acknowledging what they have done, an autobiography in which the
author acknowledges mistakes, and so on, are all examples of
confessional texts”.8

3.1 Buddhism-

Buddhism has been from its inception primarily a tradition of renunciation and
monasticism. Within the monastic framework (called the Vinya) of the sangha regular
confession of wrongdoing to superiors is mandatory.

3.2 Christianity-

In Catholic teachings, the Sacrament of Penance is the method of the Church by

which individual men and women may confess their sins committed after baptism and
have them absolved by the God through the administration of a Priest.

3.3 Islam -

The act of seeking forgiveness from God for sins called Istighfar. This act, generally
done by repeating the Arabic words astaghfirullah, meaning "I seek forgiveness from
Allah," is considered one of the essential parts of worship in Islam.

3.4 Judaism -

In Judaism, confession is an important part of attaining forgiveness for both sins

against God and other men. Confessions to God are done communally in the plural.
Jews confess that "We have sinned." In matters involving offenses against a fellow
men, private confession to the victim is a requirement in obtaining forgiveness from
the victim, which is generally a requirement to obtaining forgiveness from God. If the
victim refuses to forgive, the offender confesses publicly, before larger audience.
Confession is also performed on one's deathbed, if at all possible.

4.0 CONFESSION AS A LEGAL CONCEPT –

The laws relating to the admissibility of confessions have developed over the centuries.
They are intertwined with a number of fundamental legal rights including the right to
silence, the right to presumption of innocence, the right against self - incrimination,
and the freedom from torture, inhuman and degrading treatment.

8
Jorge G. E. Gracia, A Theory of Textuality, (SUNY Press, 1995), 94-95pp
 5

The Latin phrase “nemo tenetur prodere seipsum”, literally meaning “no one is bound
to bring forth himself”, dates back to Roman times. It appears that at that time, the
principle that no person should be compelled to betray himself in public was a check
and tool of protection from rigid public officials rather than a subjective right of anyone
who was accused of a crime.

4.1 CONFESSION: DEFINED -

The Black’s law dictionary9 defines the confession in three different ways as put down
by various courts in United States of America

1. a voluntary statement by a person charged with the commission

of a crime or misdemeanor communicated to another person
wherein he acknowledges himself to be guilty of the offence
charged and discloses the circumstances of the act or the share
and participation he had in it.

2. a statement made by a defendant discussing his guilt of crime

with which he is charged and excluding possibility of a reasonable
inference to the contrary.

3. a voluntary statement made by one who is a defendant in

criminal trial at the time when he is not testifying in trial and by
which he acknowledges certain conduct of his own constituting
the crime for which he is on trial, a statement which if true,
discloses the guilt of that crime.

The Oxford Dictionary of Law defines confessions as “an admission, in whole or in part,
by an accused person of his guilt”.10

Privy Council, as it was the highest appellate court of British colonial times held in Sri
Lankan case of Anandagoda v Queen11 that the test whether a statement is a
confession or not is an objective one, whether to the mind of a reasonable person
reading the statement at the time and in the circumstances in which it was made, it
can be said to amount to a statement that the accused committed the offence in
question or which suggested the inference that he committed the offence.

9
Black’s Law Dictionary, 6th Edition, 296p.
10
Oxford Dictionary of Law, 9th Edition, 2018, Oxford University Press.
11
Anandagoda v Queen, (1962) 64 New Law Report 73p.
 6

In Privy Council judgment of Pakala Narayana Swamy v Emperor12; one of the most
authoritative and notable cases on the subject under Indian law of evidence, Lord Atkin
held as, “A Confession must either, admit in terms of the offence, or at rate
substantially all the facts which constitute the offence. An admission of a gravely
incriminating fact, even a conclusively incriminating fact, is not in itself a confession” 13

Sir James F. Stephen14 defines a confession as “an admission made at any time by a
person charged with a crime stating or suggesting the inference, that he committed
the offence”.

When one reads the definition in the Police and Criminal Evidence Act, (PACE) of 1984
it is very clear that the English law makers also adopted the same broad approach.
Section 82(1) of the Act defines a confession to include “any statement wholly or partly
adverse to the person who made it whether made to a person in authority or not and
whether made in words or otherwise”.15

Whether a statement has to be adverse at the time it was made in order to qualify as
a confession has been the subject of recent debate. The Court of Appeal of England
stated in R v Z16 that the test to be applied at the time when the statement was
tendered in evidence. It adopted the broad view of self-incrimination which was
influenced by the decision of the European Court of Human Rights in Saunders v UK17
that the article 618 of European Convention of Human Rights extended to a statement
obtained under compulsion which had become adverse by the time it was sought to
use it in evidence. However, the House of Lords in R v Hassan19 concluded that there
was no need to adopt a strained interpretation of section 81(2), given that under the
section 78 of the Police and Criminal Evidence Act20, discretion could be used to exclude
purely exculpatory statement obtained by oppression. Thus, the reliance placed upon
the Saunders case by Court of Appeal has been misplaced.

4.2 CONVICTION BASED ON CONFESSION -

Originally in England the defendant's confession was sufficient by itself to support a

conviction. But in a few cases in which no body of the crime (corpus delicti) was found
and conviction was based solely on a confession, the courts experienced the shock of
having the person who had been thought dead turn up alive 21 after his supposed

12
Pakala Narayana Swamy v Emperor, A.I.R. (1939) P.C. 47p
13
Pakala Narayana Swamy v Emperor, A.I.R. (1939) P.C. 47p
14
Sir James F. Stephen, A Digest of Law of Evidence, American Edition, (1887 New York,) 52p.
15
Section 82(1), Police and Criminal Evidence Act, 1984.
16
R v Z, [2003] EWCA Crim 191p
17
Saunders v UK, (1997), EHRR, 313, at para 71.
18
Article 6 of the European Convention of Human Rights.
19
R v Hasan, [2005] UKHL 22p.
20
Police & Criminal Evidence Act 1984 (UK)
21
Perrys' Case, 14 How. St. Tr. 1312 (1660).
 7

murderer had been executed. Not only that, in Queen v. Unkles,22 a prosecution for
illegal communication of information at a polling place, court held by way of Obiter that
an accused could not be convicted of murder on his confession unless the dead body
is found.

R v Sykes23 in which the court affirmed a conviction of murder on the basis of

defendant's confession. However, the basis of the conviction in this case remains an
unsettled point amongst the legal scholars. Wigmore 24 says that this case apparently
requires corroborative evidence in addition to accused’s confession, while Phipson,25
on the other hand, claim that this case holds the confession alone to be sufficient to
base a conviction. R v Sullaivan26 is also another one of the earliest cases where the
courts of England held that a confession once satisfied the requirements of admissibility
and if unambiguous, is itself sufficient to support a conviction.

In Fiji, Hassan v Reginam27 court observed that, “It is well established law that man
may be convicted, even of murder, solely upon his confession.

In that case court relied on two English cases; R v Sykes and McKay v The King.28 In
Hassan v Reginam court further held that “it is customary to look for some evidence
of surrounding circumstances which are consistent with the confession. Such evidence
need not be corroboration in the strict sense of the term, but merely evidence of facts
which are not inconsistent with those set out in the confessional statements”.

Later, in Khan v State29; wherein a similar view was expressed where court observed
that, “It is well established law that the accused may be convicted of any crime upon
his own confession alone.” Recently in Alfaaz v State30 Supreme Court cited with
approval the rationale of the aforesaid judgments.

However, there are certain other instances in other jurisdictions where courts looked
at suspiciously and unfavorably on convictions solely based on confessions. Indian
Supreme Court in Subramanian Goundan v State of Madras31 held, that, “in order to
sustain a conviction on the basis of a confessional statement it is sufficient that the
general trend of the confession is substantiated by some other evidence which would
tally with the contents of the said confession, general corroboration is sufficient”.
Further, in Modi Ganga v State of Orissa32 court followed the same precedent and

22
Queen v. Unkles 8 Ir. R.C.L. 50 (1873).
23
R v Sykes, (1913) 8 Cr.App.R. 233p.
24
Wigmore, Evidence § 2070, n.5 (3d ed. 1940).
25
Malek, Hodge M, and M N. Howard. Phipson on Evidence. (London: Sweet & Maxwell, Thomson Reuters, 2010), 1058p
26
R v Sullaivan, (1887), 16 Cox 387p.
27
Hassan v Reginam Criminal App. No. 57 of 1997: 28 July 1978 [1978] FJCA 18
28
McKay v The King (1935) 54 CLR 1
29
Khan v State, Crim. App. No. AAU 0069 of 2007
30
Alfaaz v State [2018] FJSC 17; CAV0009.2018 (30 August 2018)
31
Subramanian Goundan v State of Madras, AIR 1958 SC 66p.
32
Modi Ganga v State of Orissa, AIR 1981 SC 1165p.
 8

affirmed the conviction of High Court, which was sufficiently corroborated by oral and
medical evidence.

4.3 CONFESSION v RIGHT AGAINST SELF-INCRIMINATION -

In the modern context of rights of the individuals, especially the right to silence and
right against self-incrimination are recognized as fundamental rights of any accused
who is detained and questioned by law enforcement agency. The right against self-
incrimination is the right of a person who is being questioned by the police not to
answer incriminating questions is one of the aspects of right to silence. This is
embodied in section 14(2)(j) of the Fijian Constitution.

In the United States of America, the privilege against self-incrimination is a

constitutional right under the Fifth Amendment to the US Constitution. In the
landmark case of Miranda v Arizona,33 the US Supreme Court held that the police must
inform a person before the commencement of custodial interrogation of his right to
remain silent. If the person indicates that he wishes to remain silent, the questioning
must cease. Any statement that has been obtained in violation of this rule cannot be
adduced at the trial as evidence of his guilt.

It is well established that the privilege against self-incrimination is an implicit

component of the right to a fair trial in Art 6 of the European Convention on Human
Rights.34 The privilege is also recognized in other human rights documents such as the
International Covenant on Civil and Political Rights.35 (ICCPR)

In many of the commonwealth jurisdictions, the police have a legal duty to inform the
accused of his privilege against self-incrimination. In England under the Police and
Criminal Evidence Act 1984, (PACE) a person whom there are grounds to suspect
of an offence must be cautioned before the police question him. He must be told that
he does not have to say anything and anything he does say may be given in evidence
against him during the trial. The failure to administer this caution is a “significant and
substantial” breach. Statements taken without a caution may be excluded under
section 78 of the PACE as there admission in to evidence “would have an adverse effect
on the fairness of the proceedings”.36

In 2012, the European Parliament adopted a Directive on the Right to Information in

Criminal Proceedings.37 Under these directives, member states must ensure that

33
Miranda v Arizona (1966) 384 US 436
34
Ben Emmerson, Andrew Ashworth & Alison Macdonald, Human Rights and Criminal Justice (Sweet and Maxwell, 3rd Ed,
2012)
35
Article 14(3)(g) of ICCPR.
36
R v Sparks [1991] Crim LR 128 and R v Bryce (1992) 95 Cr App Rep 320.
37
Directive on the Right to Information in Criminal Proceedings, Official Journal of the European Union, https://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:142:0001:0010:en:PDF, accessed 29.01.2019.
 9

suspects or accused persons are promptly informed in writing of number of procedural

rights,38 including the right to remain silent and right against self-incrimination.39

In December 2012, the United Nations General Assembly passed a resolution on United
Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems.40
Under (C) guidelines/guideline3, states are called upon to introduce measures to
“promptly inform every person detained, arrested, suspected or accused of, or charged
with a criminal offence of his or her right to remain silent”.41 The person should be
advised of his or her “rights and the implications of waiving them in a clear and plain
manner”.42

One of the most fundamental values of this universally recognized privilege is the
protection against any perceived power imbalance between state and individuals. Further,
it protects the individuals from unlawful coercive methods used to obtain confessions.

5.0 CONFESSION AND ITS ADMISSIBILITY -

It is a common misconception of law to consider that a confession is inadmissible. On

the contrary, the general rule is that a confession made by an accused is ordinarily
admissible against him in a criminal trial. This general rule is based on the inclusionary
principle of admissibility. Since a confession is also an admission, it is admissible
against the confessor.43

However, common law principles identifies several instances where it prohibits the
proof of certain statements as confessions. These instances operates as safeguards in
admitting confessions in to evidence in criminal trials. The preamble of the Judges’
Rules reads in following manner.

"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."

Further, Fiji court of appeal in Shiu Charan v R44 held as follows;

38
Op cit (13) Article 4(1)
39
Op cit (13) Article 3(1)(e)
40
United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems,
https://undocs.org/A/Res/67/187, accessed 29.01.2019.
41
Op cit (16) para 43(a)
42
Op cit (16) para 43 (i)
43
E.R.S.R. Coomaraswamy, The Law of Evidence, With Special Reference to the Laws of Sri Lanka, Volume 1, (Colombo,
Stamford Lake 2012), 393p
44
Shiu Charan v R (FCA Cr. App. 46 of 1983)
 10

"First, it must be established affirmatively by the Crown beyond

reasonable doubt that the statements were voluntary in the sense that
they were not procured by improper practices such as the use of force,
threats of prejudice or inducement by offer of some advantage in what
has been picturesquely described as the flattery of hope or the tyranny
of fear. Ibrahim v R (1914) AC 599 and DPP v Ping Lin (1976) AC 574.

Secondly even if such voluntariness is established there is also a need

to consider whether the more general unfairness exists in the way in
which the police behaved, perhaps by breach of the Judges’ Rules failing
short of overbearing will, by trickery or by unfair treatment”.

In State v Prasad45 court identified two main elements that disqualifies a confession
being admitted in to evidence.

(i)- Confession was made as a result of assault by the police, and

statements were made under fear, threat and oppression,

(ii)- Breach of Judges’ Rules.

However, in the same case court further held citing R. v Bass46 and Smith v Queen 47
with approval that the Judges’ Rules are rules of conduct directed to the police and
they are not rules of law. Court further held that, “the real question is were the
circumstances under which the statement was obtained such that in the interest of
justice it would be unfair to admit them and in deciding that regard must be had to
whether there was a breach of the Judges Rules”, thereby expanding the parameters
of exclusion of any confession obtained pursuant to unfair conduct by the police.

In State v Masidole & 2 others48 court identified Judges’ Rules and the provisions of
the Constitution as the governing principles which determined the admissibility of
confession made to a person in authority by an accused person.

In State v Vasuitoga & Qurai,49 the governing principles to determine the admissibility
of a confession were summarized by court in the ruling on trial within trial as follows;

"When a suspect gives an inculpatory statement to a person in authority,

it must be shown by the prosecution to have been obtained voluntarily
and without unfairness or oppression. Further the prosecution must
prove that the confession was obtained in accordance with the
Constitution, and if there were breaches of the rights of suspects under

45
State v Prasad (1995) FJHC 37 (17.02.1995)
46
R. Bass (1953) 1 AER 1064.
47
Smith v Queen (1957) 97CLR 100.
48
State v Masidole & 2 others, 2002 FLR 197.
49
State v Vasuitoga & Qurai HAC 008-2006S Ruling (12 February 2007)..
 11

the Constitution, that the suspect was not thereby prejudiced. The
prosecution must prove all these issues to the satisfaction of the court,
beyond reasonable doubt.

The test for voluntariness is whether the suspect gave his statement
freely, without oppression or hope of advantage, or fear of disadvantage.
The purpose of the rule of admissibility and of the suspect’s rights under
the Constitution is to remove the inherent imbalance of power which
exists when a suspect is questioned in custody, whilst preserving the
right of the police to question anyone in the course of proper
investigations and in the public interest. In the determining of issues
relevant to the admissibility of confessions, these are the principles to
be considered, and balanced."

According to the provisions of the present Constitution, every arrested or detained

person inter alia has the right to be informed promptly of the reason for his arrest or
detention and the nature of the charge that may brought against him, right to remain
silent and right to communicate with a legal practioner of his or her choice. Any breach
of these rights may be interpreted as rendering the statement of the accused which
contained a confession tainted with unfairness or made under unfair circumstances.

In the more recent judgment of Tuilagi v State50 Supreme Court held that the
“fundamental condition in deciding the admissibility of a confession is that the
statement made by the accused shall have been made voluntarily and 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”

A confession although made voluntarily and reliably nevertheless be excluded by the

trial judge in the exercise of his discretion. P.B. Carter in his work “Cases and Studies
of Evidence” identifies three ways in which this may be done. 51

First, the judge may invoke his general discretion to exclude any evidence the likely
prejudicial effect of which, in his view, so outweighs its true probative worth that its
reception would be liable to deprive the accused of a fair trial.

Secondly, and more specially, the judge has a discretion to exclude a confession or
analogous evidence on the ground that it was improperly or unfairly obtained. This
discretion was exceptionally preserved in R v Sang.52

50
Tuilagi v State (2018) FJSC 03. (26.04.2018)
51
P. B. Carter, Cases and Statutes on Evidence, Second Edition, (London Sweet & Maxwell, 1990) 391p.
52
R. v Sang, [1980] A. C. 402p.
 12

Third instance, which may not directly relevant to Fiji as it is applicable only under the
PACE. Section 78(1) of PACE conferred upon the court a further discretion to exclude.
This exclusion takes effect in respect of evidence having unfair effect towards the
proceedings.

Thus, it is manifestly clear by PACE judges in England were given the sole discretion
of admitting or refusing to admit any confession given by an accused as long as it
complies with the criteria laid down in the Act.

Careful analysis of the above judicial pronouncements, Constitutional provisions and

other statutory provisions establish that the law relating to the admissibility of
confessions has been explained as relying on two systems of criteria. One set of
standards focusing on the concept of voluntariness, which is maintained through
application of a strict exclusionary rule. The other requirements, the application of
Judges' Rules, or general fairness merely set forth an exemplary standard and the
consequences of a violation depend upon the facts of a particular case. 53

5.1 VOLUNTARINESS -

Rationale behind the restriction in admitting a confession obtained by threat,

inducement, promise or oppression is the concept of voluntariness. Before a statement
is given in evidence against an accused, it is a requirement of common law that the
prosecution must prove beyond reasonable doubt that it was made voluntarily. Accused
need not prove any inducement, threat etc. burden is always on the prosecution to
establish the voluntariness.

Accordingly, before a confession is acted upon by a court it must inter alia satisfy the
test of voluntariness, in a trial within trial or voir dire. The force of the confession
solely rests upon its voluntary character.

The principle of voluntariness developed along with the establishment of the

professional police force in England in 1829. A common law rule of evidence evolved
holding that all involuntary statements are inadmissible at trials. In many of common
law jurisdictions, the confession rule is stated simply: a confession is inadmissible if
the suspect did not make a voluntary statement due to police coercion.54

One of the leading cases in England that developed the doctrine of voluntariness was
the 1783 case of Rex v Warickshall.55 The accused in that case made a full confession
after the police made a “promises of favor”. The Court held such promises rendered

53
'Developments in the Law - Confessions' 79 Harvard Law Review 935 at 1095
54
Steven Penny, “Theories of Confession Admissibility: A Historical View”, (1998) 25 American Journal of Criminal Law,
309p.
55
Rex v Warickshall, (1783), 1 Leach 263p.
 13

the statement involuntary and for that reason the evidence of confession would not be
admissible.

In the United States, the first decision to exclude an involuntary confession was
Commonwealth v Chabbock, which involved a confession induced by the victim’s
promise of favor. It was said that the sole purpose of the voluntariness rule was to
reduce the possibility of wrongful conviction by preventing the jury or judge from
considering dubious confessions against the accused.

At the beginning the voluntariness test was seen as a means predicting reliability. As
Godsey argues the voluntariness test had very little relationship to the privilege against
self-incrimination or to the policies underlying it:

“The common law cases that established the voluntariness doctrine

generally do not mention nemo tenetur, the practices of the Star
Chamber or to events leading to the adoption of the self-incrimination
clause. These cases are not based on civil liberty concerns but rather
concerns of reliability”.56

Most of the former English colonies adopted this element of voluntariness in to the area
of laws relating to confessions and continue to adhere to it, though subject to trivial
modification and convoluted debates.

In R. v William57 New Zealand court decided that “in broad terms any circumstance,
which robs a confession of the quality described by the word “voluntary” will render
the confession inadmissible”.

As held in the case of R v Sartiori,58 if the judge is in doubt as to whether the confession
was made under the influence of any improper inducement he will reject the
confession.

This position has been reiterated in the case of Ganga Ram and Shiv Charan v
Regina59 (Criminal Appeal 46 of 1983) where the Fiji Court of Appeal emphasized the
burden on the prosecution to prove affirmatively and beyond reasonable doubt that
the confession is voluntary in the sense that it is not procured by improper practices
such as use of force, threats or prejudice or inducement by the offer of some
advantage.

56
M. Godsey, “Rethinking the Involuntary Confession Rule: Toward a workable Test for Identifying Compelled Self
Incrimination”, 93 California Law Review, (California, USA), 2005, 465p.
57
R. v William (1959) NZLR 502p.
58
R v Sartiori, (1961) Crim. L. Rev. 397.
59
Shiu Charan v R (FCA Cr. App. 46 of 1983)
 14

In Hong Kong in the case of Kwok Kwan-ho & another v. R60, Huggins J. held that an
assertion by a prosecution witness that a statement was free and voluntary was an
expression of mere opinion, which the court is not bound to accept.

5.2 PERSON IN AUTHORITY –

The case law reflects the debate as to what constitutes a “person in authority”. Earlier
English cases relied on an objective test. This objective test focused on the actual
position of the person in authority, whether they were engaged in the arrest, detention,
examination or prosecution of the accused. However this later evolved into a subjective
test of what the accused believed. The court used a subjective test in Rothman v The
Queen61 where the accused was tricked into making an inculpatory statement by an
officer posing as a fellow inmate. The Court held that the accused did not know he was
making a statement to a person in authority since the statement was given to an
undercover police officer and therefore the statement was admissible without voir dire.
However, in a later case, R v Hebert, 62 where there was an active solicitation of an
accused by the undercover agent despite the accused indicating a desire to remain
silent, hence, the statement was excluded. However, in the more recent Canadian case
of Grandinetti v R63 court held that the test of a person in authority has a subjective
and an objective component. In that case, the trial judge ruled that the accused's
confession to the undercover officers was admissible, holding that the undercover
officers could not be a person in authority and no voir dire on voluntariness was
necessary. On appeal, the Supreme Court upheld the ruling of the original court.

The Privy Council in R. v Deokinanan64 indicated that they did not consider the “person
in authority” requirement to be entirely desirable. The Criminal Law Revision
Committee in 1972 recommended the abolition of the distinction between person in
authority and person not in authority.65

In DPP v Ping Lin,66 House of Lords stressed two points on the issue of the abolition of
the requirement of person in authority ingredient in admitting confession in to
evidence. House of Lords were of the view, firstly; that the question of whether a
confession is voluntary is one of facts and not of law, and secondly; the prosecution
needs to prove that the inducement did not cause the confession to be made. Such

60
Kwok Kwan-ho & another v. R [1973] HKLR 231 – Held; “Witnesses should not be asked the question: "was the statement
voluntary?". Instead, there should be elicited from the witness an account of the factual situation in which the statement
came to be given”
61
Rothman v The Queen [1981] 1 S.C.R. 640
62
R v Hebert [1990] 2 S.C.R. 151
63
Grandinetti v R [2005] 1 S.C.R. 27.
64
R. v Deokinanan, (1969), 1 A.C. 20p
65
E.R.S.R. Coomaraswamy, The Law of Evidence, With Special Reference to the Laws of Sri Lanka, Volume 1, (Colombo,
Stamford Lake 2012), 421p.
66
Director of Public Prosecution v Ping Lin, (1976) A.C. 574p.
 15

approach made the issue entirely subjective rather than objective and depends on the
actual effect of the inducement on the accused. This would make the idea that the
status of the person offering the inducement should be that of a person in authority as
a necessary requirement for its inadmissibility is meaningless. It would only be a
relevant fact not a necessary ingredient.

In State v Masidole & others67 court held that the doctor who examined the accused
and recorded an admission before they were produced in custody not to be a person
in authority, hence both confessions to be admissible in evidence. In King v
Weerasamy68 court held that a person who detains a suspect until the presence of the
Police is secured is not, ipso facto, a person in authority.

Therefore, it is abundantly clear that any inducement made by a person in authority;

and such inducement operating on the mind of the accused by way of fear or hope,
however slight, if held out by a person in authority over criminal proceedings and
relating to some benefit or injury in connection with such proceedings, suffice to
exclude a confession as evidence.

The person who offer the inducement always need not to be the person in authority.
In R v Kevin Moore69 it was the father of the accused who offered the inducement in
the presence of police officer. On appeal, court held that such a confession is not
admissible under the common law principles. However, in R v Longstaff70 police passed
a massage to a third party to convey same to the accused who, as a result of the
massage, makes a confession to the third party. Court held that such a confession
would be inadmissible if obtain in the “hope of advantage” or “fear of prejudice”,
despite the fact that it was not made to a person in authority.71

In India one finds the foundation in interpreting the instant term. High Court of Bombay
in R v Navroji Dadabhai72 laid down the test to be applied in deciding the issue of
person in authority. In that case court held that; “had the person authority to interfere
with the matter?” and “any concern or interest in it would appear to be held sufficient
to give him that authority” to be applied in ascertaining the fact that who is the person
in authority. In R. v. McDermott 73 the High Court of Australia thought the police, the
prosecutor or "others concerned in preferring the charge" would fall within the
terminology "person in authority".

67
State v Madisole (2002) FLR 197.
68
King v Weerasamy [1941] 43 New Law Report 152p.
69
R. v Kevin Moore, (1972) 56 Cr. A. R. 373p.
70
R. v Longstaff, (1984) Times, 12 June; Halsbury’s Laws of England (1984) Abrige. S.653p.
71
E.R.S.R. Coomaraswamy, The Law of Evidence, With Special Reference to the Laws of Sri Lanka, Volume 1, (Colombo,
Stamford Lake 2012), 422p.
72
R v Navroji Dadabhai, 9 Bom. HCR 358p.
73
McDermott v R [1948] 76 CLR 501
 16

However, with the enactment of the Police and Criminal Evidence Act, the common law
concept of person in authority has no longer direct bearing or validity in England in
respect of law relating to confessions. It is no longer a requirement of the statute,
although it will no doubt be a material fact to be considered in deciding on the question
of voluntariness, fairness and admissibility of the confession.

5.3 JUDGES RULES AND FAIRNESS -

The English judges found during the nineteenth century that the common law
requirement that a confession must be voluntary was not sufficient to protect the
accused against what they regarded as unfair practices by the police. They accordingly
made known their view that the police, when investigating offences, should observe
certain standards of behavior. These standards eventually became embodied in the
Judges' Rules, drawn up by the Judges of the King's Bench Division in 1912, added to
in 1918 and clarified in a Home Office circular in 1930, and supplemented in two further
circulars in 1947 and 1948, and re-introduced in 1964. The status of the Rules was
explained by the Court of Criminal Appeal in 1918 in R v Voisin74 on following terms;

"These Rules have not the force of law, they are administrative
directions, the observance of which the police authorities should enforce
on their subordinates as tending to the fair administration of justice. It
is important that they should do so, for statements obtained from
prisoners contrary to the spirit of these Rules may be rejected as
evidence by the judge presiding at trial."

Prior to 1912 the problems of investigation and interrogation were not so profound as
they are today. No rules were in place that governed the investigations by the police.

As far back as 1870 Lord Chief justice Cockburn said at the Central Criminal Court:

“you may ask a man a question with an honest intention to elicit the
truth and ascertain whether there are grounds for apprehending him;
but with a foregone intention of arresting him, to ask him questions for
the main purpose of getting anything out of him that may afterwards be
used against him, is very improper proceeding.”75

74
R v Voisin [1918] 1 KB at pp 537, 538)
75
T. E. St. Johnston, Judges Rules and Police Interrogation in England Today, 57 J, Crim. L. Criminology and Police Science,
85 (London, England) 1966, 85p.
 17

With this passage it is revealed that judges in England were always vigilant about the
police procedures despite no proper mechanism was in place to guide the police in their
investigations

Finally, in 1906 one Chief Constable wrote to the Lord Chief Justice asking him to give
a ruling, clarifying the circumstances in which a caution should be used before
recording any statement whether it amounts to a confession or not from a suspect.
Consequent to the said request and many other requests both from the officials of
Crown and public in 1912 panel of judges headed by the Lord Chief Justice formulated
the first four Judges’ Rules of England. In 1918 they prepared another five rules and
in 1930, issued a statement clearing points of ambiguity in the nine rules they had
made. On two separate occasions in 1947 and 1948 the Home Secretary issued
circulars, after consultation with the then Lord Chief Justice, on the taking of
statements of the accused in custody based on these Rules. These Rules were in
practice until they were replaced by the Judges Rules of 1964. However, it is interesting
to note that none of these rules found it way to the legislative domain as part of English
criminal law.76 Non-observance of these rules may result in the exclusion of the
consequent confession.77

In Fiji, most of the guidelines that are embodied in Judges Rules are enshrined in the
Bill of Rights chapter of the Constitution. Therefore, any breach of such rights would
eventually render a confession in admissible in evidence. This was highlighted by Her
Ladyship (madam) Shameem during the ruling in State v Vasuitoga & Qurai,78 in
following terms;

"When a suspect gives an inculpatory statement to a person in authority,

it must be shown by the prosecution to have been obtained voluntarily
and without unfairness or oppression. Further the prosecution must
prove that the confession was obtained in accordance with the
Constitution, and if there were breaches of the rights of suspects under
the Constitution, that the suspect was not thereby prejudiced. The
prosecution must prove all these issues to the satisfaction of the court,
beyond reasonable doubt”

76
Op cit, 86p.
77
R. v Northam [1968] 52 Cr. L. Rev. 97p.
78
State v Vasuitoga & Qurai HAC 008-2006S Ruling (12 February 2007).