The last chapter on voire dire

Sep 14, 2009 Letters

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Dear Editor,

This is my final contribution in the debate with my learned friend Mr. Anil Nandalall as to whether a magistrate in a preliminary inquiry has the jurisdiction to admit or reject an alleged confession statement in a voire dire.

Mr. Nandalall’s position is that a magistrate does not have the jurisdiction so to do and that any rejection of a confession has to be done at the trial in the High Court. My contention is that a magistrate has the right and duty to hold a voire dire and at the end of the evidence, a determination has to be made as to whether the confession should be admitted or rejected.

Mr. Nandalall had challenged me on more than one occasion to cite a case that supports my contention. He, on the other hand, had not cited any case that takes away the right and duty of a magistrate in Guyana to hold a voire dire as regards the admissibility of a confession statement.

I cited the case of the State v Webber and his response was that the case was wrongly decided and that the learned judge was erroneous in his findings. Whether Mr. Nandalall likes it or not that case is good law and must be followed by all magistrates in Guyana until it is over-ruled.

It will not be over-ruled because it’s good law and when the other authority which I will cite is put along-side it, then all magistrates in the Caribbean will have to continue to hold voire dires to determine the admissibility of confession statements.

Mr. Nandalall in his last letter cited the case of the State v Oswald Gobin and Boniface Griffith (1976) 23 WIR 256 as supporting his contention.

That case is good law but it has nothing, absolutely nothing to do with whether a magistrate has a duty to hold a voire dire to determine the admissibility of a confession statement or whether this has to be done at the trial in the High Court.

The facts, simply, in that case was that the judge did not rule, in a voire dire, whether the confession statement was voluntary, but left it to the jury to decide as the accused was alleging that he did not make the statement and that it had been prepared by the police and he was forced to sign.

The court found that the judge was wrong and made several findings and amongst them were: –

(a) In each case the objection challenged the voluntariness of the written statement and a ruling after a trial within a trial was essential upon all the evidence including the evidence of the accused (if any) of any compulsion exercised by any police officer to induce him to sign it.

(b) In each case, as a result of the judge allowing the jury to determine the voluntariness, the confession was received in evidence although not duly shown to be voluntary

(c) In most cases, if not in all cases, a trial within a trial should be held to decide and rule on the admissibility i.e. the voluntariness of confession statements.

As I indicated earlier the decision of this case does not impact on the question as to whether a magistrate can and should hold a voire dire.

Mr. Nandalall gave the number of pages of the ruling as being 75, but nowhere, and I repeat nowhere, does the word magistrate appear and or any statement that a magistrate should not hold a voire dire in a preliminary inquiry to determine the voluntariness of a confession statement.

I also wish to note that Mr. Nandalall has not in any of his response either accepted that the practice of holding voire dires has been in existence in our magistrates courts for decades or that this is not so. I want to believe that he has deliberately avoided this issue because he took part in at least two voire dires in the magistrate court.

I want to conclude by referring to the book – The Admissibility of Confessions by The Honourable Fred Kaufman.

Mr. Kaufman was a justice of appeal in Canada and the book which was the Third Edition was printed by The Carswell Company Limited, Toronto, Canada in 1979. I wish to acknowledge my thanks to my good friend and colleague Mr. Edward Luckhoo S.C. for bringing this book to my attention.

At page 61 of the book, the author under the heading of Preliminary Inquiries discussed the admissibility of statements at preliminary hearings. I quote as follows — “Should a magistrate accept all declarations and simply add them to the record or should he hold a voire dire, with the same strictness of proof, as if it were a trial? It is submitted that the latter course is correct”.

It follows that the only type of confession which a magistrate may receive in evidence at a preliminary inquiry is one which can meet all the requirements laid down by the jurisprudence.

It follows also that the only way in which a magistrate can discover whether or not these requirements are met is by holding a voire dire.

This is the opinion of Macdonald J.A., who held in R v Pearson (1957) 25 CR 342 at 352 “that at a preliminary inquiry the same principles govern the admissibility of a confession or a statement, as would apply at trial”

There can be no doubt, in my humble opinion, that a magistrate has the duty to hold a voire dire to determine the admissibility of a confession statement and this is not the prerogative at the trial in the High Court.

I will not be writing again on this subject even if Mr. Nandalall says that all the above is wrong and or wrongly decided. I know it is hard to admit one is wrong and thus I do not expect any recantation from Mr. Nandalall. Perhaps I may be hopelessly misplaced on this thought!

K. A. Juman-Yassin

Attorney-at-Law

 

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