Excluding confession - application

Question 1

What are the steps required to make an application to exclude confession?

Answer 1

1. Advance notification
2. Timing
3. Voir dire and
4. Submission

Question 2

Advance notification?

Answer 2

When judge reviews defence statement (pre-trial) which includes any point of law (e.g., admissibility of evidence), they are likely to order within time limits:
* defence to serve skeleton argument in support of s.76/78 arguments (at least 10 business days before trial) and,
* prosecution to serve response (5 business days after that)

time limits are contained in MC PET form not any specifici procedure rule

Question 3

Timing of application?

Answer 3

Application to exclude confession can be made:
* at pre-trial hearing listed specifically for this purpose or
- no pressing need to deal with it at outset
- when prosecution is on notice that defence are challenging admissibility
* can be dealt with prior to opening case to jury
- where prosection needs to know if confession is admissible or not to open its case
- result of legal argument is decisive as to whether prosecution can continue with its case

In MC, any application under s.76 should be dealt with as preliminary issue

Question 4

Voir dire?

Answer 4

Where a challenge is raised under s.76 (or both s.76 &78) and facts are disputed on both side, judge will have to make findings of fact - done by way of voir dire (trial within a trial):
* prosecution will call its evidence and defence does same
* having heard evidence, judge will resolve disputed facts before ruling on admissibility of evidence
Takes place in open court in presence of D and in abscene of jury (if CC)

in MC, application only under s.78 means magistrates have discretion to hear all evidence and decide upon its admissibility at a later date

Question 5

What happens in voir dire if judge fails to resolve dispute?

Answer 5

If so, even where not specfically invited to do so, any resulting conviction is likely to be quashed because it is logically impossible for judge to be satisfied that prosecution has proved beyond reasonable doubt that confession was not obtained by means of s76

Question 6

Submissions of application?

Answer 6

• Voir dire is only required if a factual matter relating to substance of legal argument requires resolution for arguement to proceed
• if background facts are agreed then no need for voir dire and legal argument can be made on agreed factual basis (e.g., defence relies on s.76 argument on Code C breaches but prosecution agrees breaches occured but wishes to argue that they do not amount to oppression/unreliability) - no need to call evidence

Having heard submission, judge would then make ruling