XN000022-1985-10-07 — Page 3

2

MONDAY, OCTOBER 7, 1985

HOWEVER, THE SPOKESMAN ALSO POINTED OUT THAT WHILE THE SUB- COMMITTEE WAS UNANIMOUS IN ITS VIEWS, THE COMMISSION ITSELF ONLY DECIDED BY A MAJORITY VOTE ON ONE OF THE PROPOSALS. THIS WAS WHETHER THE JURY SHOULD BE ENTITLED TO DRAW AN ADVERSE INFERENCE FROM AN ACCUSED'S REFUSAL TO ANSWER QUESTIONS PUT BY THE POLICE AND WHETHER THE JUDGE AND THE PROSECUTION, AS WELL AS THE DEFENCE, SHOULD BE ABLE TO COMMENT TO THE JURY ABOUT IT.

THE SPOKESMAN EXPLAINED: +THIS DIVISION OF OPINION REFLECTS THE DIFFERING VIEWS EXPRESSED BY LAWYERS HERE AND IN THE UNITED KINGDOM.+

BY A MAJORITY DECISION THE COMMISSION RECOMMENDS THAT IN SUCH CIRCUMSTANCES THE JURY SHOULD BE ABLE TO DRAW AN ADVERSE INFERENCE AND THE JUDGE AND THE PROSECUTION SHOULD BE ALLOWED TO COMMENT.

IN MAKING THE RECOMMENDATION, THE COMMISSION MAINTAINS THAT THE ACCUSED PERSON SHOULD BE WARNED AS SOON AS POSSIBLE THAT IF HE REFUSES TO ANSWER QUESTIONS THERE COULD BE ADVERSE CONSEQUENCES - THE JURY COULD INFER HE WAS TRYING TO CONCEAL HIS GUILT BUT THIS INFERENCE COULD NEVER ON ITS OWN LEAD TO A CONVICTION.

THE SPOKESMAN SAID THAT IN HONG KONG THE DEFENCE CHALLENGED THE ADMISSIBILITY OF CONFESSION STATEMENTS IN ALMOST 90 PER CENT OF CASES - AGAINST ONLY 10.5 PER CENT OF THE CASES IN THE CROWN COURT IN ENGLAND.

AND,

IN HONG KONG, IN CASES WHERE THE PROSECUTION SEEKS TO RELY ON A CONFESSION STATEMENT, ALMOST HALF THE TIME OF THE COURT IS SPENT ON THE VOIR DIRE.

THE COMMISSION MAINTAINS THAT APART FROM THE TIME AND EXPENSE OF VOIR DIRES, THERE WERE THREE SERIOUS EFFECTS:

*

PUBLIC CONFIDENCE IN THE INTEGRITY AND COMPETENCE OF THE POLICE WAS UNDERMINED;

* THERE WAS THE SUSPICION THAT A CONSIDERABLE NUMBER OF DEFENDANTS WOULD NOT HAVE BEEN ACQUITTED IF THEIR CONFESSIONS HAD BEEN ADMITTED; AND

*

PUBLIC CONCERN WAS INCREASED THAT THE ACCUSED WAS NOT RECEIVING FAIR TREATMENT AT THE HANDS OF THE POLICE.

THE CENTRAL RECOMMENDATION OF THE REPORT IS THAT WHERE THE PROSECUTION WISHES TO INTRODUCE A CONFESSION STATEMENT AT A TRIAL, THE ACCUSED MUST BE BROUGHT BEFORE AN INDEPENDENT EXAMINER WITHIN 24 HOURS OF BEING CHARGED.

THE SPOKESMAN EXPLAINED: +THE EXAMINER WILL ASK THE ACCUSED A SERIES OF QUESTIONS DESIGNED TO ELICIT ANY COMPLAINTS AS TO HIS TREATMENT BY THE LAW ENFORCEMENT AGENCY.

+ IF THE ACCUSED MAKES NO COMPLAINT AT THIS STAGE HIS STATEMENT BECOMES AUTOMATICALLY ADMISSIBLE AT THE TRIAL, WITHOUT THE NEED FOR A VOIR DIRE.

/+WHERE A