The Gazette 1980

GAZETTE

DECEMBER1980

official inquiry then few statements would ever be voluntary. The greatest weakness of the voluntariness test lies in the unwieldly role which it must fulfill — that of exploring a phenomenon as elusive as the level of psychological coercion to which a suspect has been subjected. Such an inquiry is incapable of yielding consistent results. Whether a confession was in fact involuntarily obtained will depend on the particular judge's assessment of the amount of psychological pressure present. In any given case dealing with this matter too much room is provided for judicial disagreement. The judicial understanding of voluntariness which has evolved in this jurisdiction must be considered in the light of the legally sanctioned practice of interrogation. In so doing one can ask whether this practice of interrogation, controlled by the prevailing conception of voluntariness and the Judges' Rules, provide an optimal level of protection and respect for the suspect. In The Queen v. Johnston Pigot C. B., dissenting, refered to the subtly coercive nature of interrogation. 31 In Galvin Justice Kenny rejected the dissenting view of Pigot C. B. which held that interrogation was impermissible. Thus, interrogation is regarded today as a quite routine and indispensible means of gathering information for the prosecution of crime. The acceptance of interrogation as a legally permissible activity carried out under executive powers is based on a recognition of the social necessity and public interest in detecting crime. The limitations imposed on the use of interrogation on the other hand reflect a commitment to securing the voluntary co- operation of the suspect in custody. While the major function of interrogation is to gain information about the commission of crime a suspect is, at present, given the opportunity to choose between answering questions put to him or remaining silent. 32 If the right to silence is waived then a suspect can be comprehensively questioned as to his knowledge about, and involvement in, the commission of the particular crime under investigation. An opportunity is also given in this scheme of things to a suspect so that he may exculpate himself and so dispel any suspicion of criminal involvement. Despite the existence of the voluntariness test and the Judges' Rules there is still present in the custodial setting a psychologically intimidating dimension. The suspect who is detained in custody is removed from the world he knows. There is generally no independent party present to record what occurs during interrogation nor any person who can be appealed to to control the examination with in reasonable bounds. 33 Since the system of interrogation represents an intrusive practice created by the executive a special obligation rests on the executive to ensure as far as possible that the statements taken from a suspect are freely and voluntarily obtained. The accusatorial and adversarial nature of our criminal justice system impose limits on the practice of interrogation because it demands that the issue of guilt be determined in a court of law and not in the police station.

voluntariness test, as expounded in this jurisdiction, is limited to the extent it focuses on the presence or absence of such factors as threats, promises, inducements or oppression. When it comes to applying the voluntariness test practical difficulties are encountered. The major difficulty relates to the task of assessing the element of psychological coercion to which an accused has been subjected. 34 In addition, due to the lack of any require- ment that what takes place during interrogation be objectively recorded, there is a gap in the courts' knowledge. This shortcoming is of considerable importance when one considers the situation of the accused who denies that his confession was voluntarily obtained in the face of police denials to the contrary. Whom does the court believe? It is not proposed to offer here any specific solution to the problems mentioned. A solution though would seem to rest on the provision of more information. The accused should be given the information necessary to make an informed choice. He should be able to freely and intelligently choose between waiver and silence. In this way an accused will be able to fully avail of his trial rights. Any proposed curtailment in the present regime of protection should be sensitive to the values which are involved — values which lie at the heart of our criminal justice system and which form the basis of our conception of the accused as a moral agent entitled to be presumed innocent until proven guilty. FOOTNOTES 1 119141 A C 599 at p. 609 Lord Summer's statement of the law was' approved in People (A.G.) v. McCabe 119271 I.R. 129. 2. Callis v. Gunn 119631 3 All E.R. 677 at p. 680. 3. Queen v. Johnston 118651 15 IR. C.L.R. 60 at p. 130. 4. Ibid, at p. 130. 5 Queen v. Johnston [18651 15 IR C.L.R. 60 at pp 133-5. 6 John Henry Wigmore. A Treatise on the Anglo-American System of Evidence in Trials at Common Law, 2nd Ed., section 822, pp 139-142. ^ , 7 ie. a test which seeks to determine whether the accused s confession was freely and voluntarily given (per Lefroy C. J. in J ° 8™Peop/e (A.G.) v. Galvin [19641 I.R. 325 at p. 330. 9. [19771 I.R. 336. 10. Ibid, at p. 354. The Chief Justice also accepted the proposition that confessions may be rendered involuntary as a result of oppressive questioning. 11. [19471 I.R. 236. 12. Ibid, at p. 240. 13. People (A.G.) v. Cummins (19721 I.R. 312 at p. 322. 14. [19641 I.R. 325. 15. Ibid, at p. 330. 16. Ibid at p. 330. 17. See, for example, People (A.G.) v. Ainscough 1196011.R. 136, People (A.G.) v. Flynn (1963) I.R. 255. 18. People (A.G.) v. McCabe (1927) I.R. 129 at p. 134. 19. 119141 A.C. 599 at p. 609. 20. In People (D.P.P.) v. Shaw, unreported, May 1979, Court of Criminal Appeal, the beyond a reasonable doubt standard was used to determine whether statements and admissions of an accused were voluntary (see p. 21. People (A.G.) v. McCabe 11927] I.R. 129. 22. Ibid. pp. 134-135. Accepted by Kenny J. in People (A.G.) v. Galvin 11964] I.R. 325 at p. 333. 23. (1865) 15 IR C.L.R. 60. 24. See Pigot, C. B., Lefroy, C. J., O'Brien J. O'Brien J. in referring to answers given by a prisoner detained in custody to questions put to him by the police observed: "The very fact of these questions being put by such a person, unaccompanied by any such caution, conveys to the prisoner's mind the idea of some obligation on

5. Conclusion

The values which have been identified as the subject of protection under the voluntariness test are of sufficient importance to warrant a very high level of protection. The

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