Judicial Committee of the Privy Council
| Author | JA Coutts |
| Published date | 01 April 1998 |
| Date | 01 April 1998 |
| DOI | http://doi.org/10.1177/002201839806200204 |
| Subject Matter | Judicial Committee of the Privy Council |
JUDICIAL COMMITTEE OF THE PRIVY COUNCIL
JUDGE'S DUTY ON VOIRE DIRE
Thongjai v R
Where a defendant is alleged to have made an oral statement amounting
to an admission of guilt to a police officer, but denies at his trial that he
made any such statement, is it appropriate to hold a voire dire to examine
the circumstances in which any statement such as that alleged may have
been made? And, if a voire dire is held in a case in which a defendant
alleges that he made no statement and also that any statement he may
have made was involuntary, has the judge jurisdiction to rule upon the
nature of the statement, as to whether it was involuntary and therefore
inadmissible? As reported in Thongjai v R
[1997]
3 WLR 667, two cases
tried in separate courts, one case of murder and the other of drug
trafficking, came together before the Privy Council because they raised the
same question of law as to the duty of a trial judge where an accused says
that he did not make a statement or, if he did, it was made involuntarily.
In Thongjai's case, the appellant was found in a flat with the body of the
owner, who had been murdered. He was a Thai, who had come to Hong
Kong with an Indian, who, he said, had committed the murder. The
appellant was convicted of murder, principally on the basis of a statement
he was alleged to have made to the police. He said he had made no
statement at the flat and that, if he had done so, it would be involuntary
and inadmissible in evidence because
of
the fact that he had been kept for
some hours sitting on the floor of a room in the flat in the dark,
handcuffed. The judge held a voire dire to examine the question of the
police conduct, but he held that he had no jurisdiction to rule upon the
question of whether the statement was (or would have been) voluntary,
although the appellant claimed that the police evidence itself betrayed
such conduct by them as to render the statement involuntary. In the
second case, the appellant was convicted of drug trafficking, it being
alleged that he had been found in possession of a briefcase containing
drugs. In this case, too, it was alleged that he made a statement to the
police before he left the building in which he was arrested. He claimed
that he had made no statement and that the police had assaulted him, so
that any confession he might have made would have been involuntary and
inadmissible in evidence. In his case, too, there was a voire dire, to
examine the circumstances in which any statement would have been made.
Here, too, the judge ruled that there was no power vested in the court
whereby it could be said that he had jurisdiction to declare the statement
to be involuntary, if indeed its having been made were proved.
May a defendant make a double-barrelled attack upon an allegation
that he made a statement by claiming (1) that it was not voluntary and
(2) that it was not made?
It
was stated by the Chief Justice in the Court
of Appeal of Guyana in State v Fowler (1970) 16 WIR 452 that he 'need
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