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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.
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
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
200