Magistrates should conduct voir dire

Jun 05, 2011 News

– Bar Association review 2011

By Rabindra Rooplall

With all the arguments being advanced about the relevance of Magistrates conducting voir dire (trial within a trial), an article in the most recent bar association review states that a Magistrate should hold an inquiry to determine the admissibility of certain confessions during a high profile Preliminary Inquiry into a charge of murder or other indictable cases.
Many Magistrates themselves are still unconvinced or undecided on the true legal position.
According to the Bar Association Review 2011, a Magistrate has to determine whether there is sufficient evidence to put the accused on trial before a judge and jury, and as such if the evidence is based on a confession statement a voir dire should be conducted to ascertain its voluntary basis in which it was given by the accused.
It was noted by the author, Attorney-at-Law Murselene Bacchus, in the Bar Association’s report that before an accused is committed to stand trial, a Magistrate conducting a Preliminary Inquiry can only admit into evidence that which is legally admissible and not what is legally inadmissible.
“In any case where there is a committal based solely on evidence that is legally inadmissible, that committal would be quashed.”
Any debate on this vexed legal question must commence with a reference to Section 4 of the Evidence Act, Chapter 5:03 which provides: subject to this Act and any other written law for the time being in force, the ruler and principles of the common law relating to evidence shall, as far as they are applicable to the circumstances of Guyana, be in force therein.
However, since there is no statutory provision which applies to the admissibility or, indeed, the admission of a confession statement, it is to the common law relating to evidence that one must turn in seeking to answer the question whether a Magistrate must first hold a voir dire or an inquiry and then determine whether a confession statement was made voluntarily before he or she can admit it into evidence.
In addition the report states that since a Preliminary Inquiry is not a trial and the guilt or innocence of an accused is not determined in a Preliminary Inquiry, it is somewhat misleading and technically incorrect to speak of “a trial within a trial” in the context of a Preliminary Inquiry.
Perhaps it is more technically correct to speak of an inquiry or of the determination of a factual issue (of voluntariness) as an issue relevant to the legal issue of admissibility (of a confession statement).
Preliminary Inquiry must first determine the factual issue of voluntariness as a fact relevant to the legal issue of admissibility. “Put another way, since a judge or a magistrate has no power to admit into evidence that which is inadmissible, is voluntariness a jurisdictional fact relevant to the very existence of a court’s jurisdiction or power to admit into evidence a confession statement?”
Thus, if a confession statement is inadmissible, the court cannot admit it into evidence. However, if it is admissible, the court may still refuse to admit it into evidence or may exclude it on the ground of unfairness e.g. for breach of the accused’s constitutional right, for breach of the Judges’ Rules or for the use of trickery in the process of obtaining that confession statement or if its admission would prejudice fairness.
Thus, a confession statement may be voluntary and yet may not be admitted into evidence.
It is crucially important to distinguish between admissible hearsay evidence and inadmissible hearsay evidence.
The common law rule against the admissibility of hearsay evidence is an exclusionary rule. By that rule, an out of court statement made by a non-witness is inadmissible as evidence of the truth of that statement unless it falls under one of the exceptions.
It was further explained in the report that this is so because the alleged maker of the statement (the accused) cannot be called as a witness by the prosecution. But, if the confession (or admission) was made voluntarily, it is admissible in evidence as an exception to the hearsay rule. Therefore, an admission or confession is inadmissible hearsay evidence and does not qualify for admissibility unless it was made voluntarily.
“The point is that an out-of-court confession statement without more is inadmissible hearsay evidence under the rule against hearsay but, if it was made voluntarily, it qualifies as admissible hearsay evidence under an exception to the rule against hearsay,” the bar reports stated.
It is true to say that a judge or magistrate does not exclude a confession statement (or “throw it out” as is commonly stated) on not being satisfied of voluntariness.
It is therefore obvious that a confession statement made voluntarily is admissible in evidence under an exception to the rule against hearsay. On the other hand a confession statement, not proved or found to be voluntarily made, is inadmissible hearsay under the general rule aping hearsay. Lord Sumner in Ibrahim supra, said:
It has long been established as a positive rule of English Criminal Law that no statement of an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement.
According to another legal luminary, “There can be no doubt, in my humble opinion, that a magistrate has the duty to hold a voir dire to determine the admissibility of a confession statement and this is not the prerogative at the trial in the High Court.”