Horvath v. The Queen

Horvath v. The Queen
Collection
Supreme Court Judgments
Date
1979-02-20
Report
[1979] 2 SCR 376
Judges
Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves
On appeal from
British Columbia
Subjects
Criminal law
Decision Content
SUPREME COURT OF CANADA
Horvath v. The Queen, [1979] 2 S.C.R. 376
Date: 1979-02-20
Otto Joseph Horvath Appellant;
and
Her Majesty The Queen Respondent.
1978: May 17, 18; 1979: February 20.
Present: Martland, Ritchie, Spence, Pigeon, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law — Murder — Confession obtained by interrogation specialist — Admissibility — Emotional disintegration of accused — Accused under light hyp­notic state immediately prior to but not at time of giving confession — Whether statement voluntary.
During the morning of June 16, 1975, the mother of the appellant, Horvath, was murdered in her own bed by having her skull struck repeatedly with a blunt instru­ment. About midnight of the same day, the appellant, who was 17 years of age at the time, was arrested for suspicion of murder, given the usual police warning, and was taken to detention cells. He was there interrogated for just under three hours by two R.C.M.P. officers. The appellant made certain oral declarations concerning his whereabouts on June 16, the taking of the car of his mother's common law husband and his involvement in two car accidents; but through the end of the interview he denied having killed his mother.
The next day at about noon, the appellant voluntarily underwent an interview which lasted some four hours with an R.C.M.P. polygraph operator, Staff Sergeant Proke, although no actual polygraph test was conducted. There was a complete taped transcript of what was said during the four hours. During the interview, the officer left the appellant alone in the interview room three separate times. During these three periods, the appellant reflected aloud in what the trial judge called monologues or soliloquies.
During the first monologue, the appellant vowed to avenge his mother. During the second monologue, the appellant asked his mother why she had asked him to kill her and he confessed having killed her by hitting her over and over again. When the officer returned after the second monologue, the appellant repeated the confession to him, and told him he had used a baseball bat and had disposed of it in a certain location. During the third and last monologue, the appellant asked his mother's for­giveness for having disclosed the incident. Following the interview, the appellant provided the R.C.M.P. investigating officers with a written signed confession. He also accompanied them in a police car to the location where he had disposed of the baseball bat, a towel, gloves and socks, all of which were recovered.
After a voir dire, the trial judge ruled that the accused's first statement was inadmissible because it had been "obtained in an atmosphere of oppression which may have spilled over, in the accused's mind, to an atmosphere of threat". The Crown did not appeal from that ruling.
In the course of argument, the trial judge expressed the view that the second statement was not tainted by the first. He said that if it was "tainted from within", not by the first interview with the investigating officers.
The trial judge finally ruled the second statement inadmissible apart from any relationship with the first statement, because of the factor of hypnosis. A psychia­trist, who had been called by the Crown, was requested by the trial judge to listen to the entire tape of the interview. He did so and prepared a written report which was received in evidence by consent. The trial judge noted that the psychiatrist had said that following the first soliloquy and continuing throughout until the end of the second soliloquy the accused was in a light hypnotic state. The trial judge stated: "Had [the psy­chiatrist] not given the evidence of an hypnotic state, I would have, with some misgivings, have admitted this statement. It is the accumulation of all the factors .. . plus the factor of the subject having been, for a sizeable part of the interview, in an hypnotic state immediately before the confession came out, that have caused me to reject the statement."
As for the third statement (the signed confession), it was ruled out because it flew directly from the second statement and was vitiated by the same factor.
On appeal by the Crown from the appellant's acquit­tal upon the verdict of the jury, the British Columbia Court of Appeal held that the second and third state­ments were admissible. That Court relied upon Ibrahim v. The King, [1914] A.C. 599, among other authorities, and upon the words of Viscount Sumner: "It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecu­tion to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority." The appeal was allowed, the acquittal set aside and a new trial ordered. From that judgment the accused appealed to this Court.
Held (Martland, Ritchie and Pigeon JJ. dissenting): The appeal should be allowed and the verdict of acquit­tal restored.
Per Spence and Estey JJ.: Rather than placing emphasis on the existence of any hypnosis, reliance was placed on all of the circumstances and particularly the finding of the trial judge that under the circumstances of the four-hour interview the complete emotional disin­tegration of the appellant had been brought about. It was really for this reason that the trial judge ruled that the statement as well as the other supporting material such as the tapes of the questioning and soliloquies were inadmissible.
The requirement to establish the admissibility at trial of a statement made by an accused person to persons in authority has been oft cited as simply that it is free and voluntary. There has been repeatedly throughout the cases emphasis on the fact that the statement must be voluntary and often such words as "of free will" are added. Here, the appellant was 17 years of age. He was of a most unstable character, diagnosed by the Crown psychiatrist as being a sociopathic personality who had boasted that he owned three fine automobiles, that he had been the manager of one department of a large company, who had said to a youth who was his friend that he was so anxious to obtain a fine car that he would take the money from his mother and even kill her, and then this boy was hammered in cross-examination by two most impressive police officers and then taken by a skilled and proved interrogation specialist and, with what the psychiatrist described as the most suggestive of questions, taken through a three-phase examination so that the trial judge characterized his condition at that time as one of "complete emotional disintegration". No statement made by that accused under those circum­stances could be imagined to be voluntary, and nothing in the authorities indicated that the law was otherwise.
Per Beetz and Pratte JJ.: The trial judge was right in ruling the appellant's second and third statements inad­missible. Horvath's state of hypnosis began at some point in time after his first monologue while he was being interrogated by Sergeant Proke; he remained in that state until the officer re-entered the interrogation room at the end of the second monologue. Following the first monologue, the interrogator sensed that Horvath was more vulnerable and his manner and voice took on an hypnotic quality to which Horvath did in fact respond by slipping into a state of light hypnosis. This was induced hypnosis in the sense that Sergeant Proke was instrumental in bringing it about, albeit unwittingly.
Nothing that Horvath said under hypnosis was volun­tary in the legal sense. In typical legal fashion, the test of voluntariness is expressed negatively in the Ibrahim rule by reference to instances of involuntariness: a statement obtained by hope of advantage, (a promise), or fear of prejudice, (a threat), exercised, held out or inspired by a person in authority, is involuntary in the eyes of the law.
The enumeration in the rule of instances of involun­tariness cannot be limitative since the rule is a judge-made rule and anything said by a judge beyond what is necessary to decide the issue is obiter. Furthermore, the principle which inspires the rule remains a positive one; it is the principle of voluntariness. The principle always governs and may justify an extension of the rule to situations where involuntariness has been caused otherwise than by promises, threats, hope or fear, if it is felt that other causes are as coercive as promises or threats, hope or fear and serious enough to bring the principle into play. The principle behind the rule justified that the rule be extended to cover the circumstances of the present case.
As to the question whether the second and third statements were tainted by the circumstances which preceded them and more particularly by the involuntari­ness of the statement made under hypnosis in the course of the second monologue, that monologue and the second and third statements were part of a continuous and very short process. Each stage of the process aroused the other in quick succession. The third statement found its polluted source in the second statement and the second statement in the equally polluted source of the second monologue uttered under hypnosis. Both statements were as vitiated as their source and equally involuntary and inadmissible.
Per Martland, Ritchie and Pigeon JJ., dissenting: The Court of Appeal correctly stated the law to be applied in Canada in determining the admissibility of a statement to a police officer by an accused person. The question as to whether a broader rule of exclusion than that stated by Viscount Sumner in the Ibrahim case ought to be applied was raised and met in R. v. Fitton, [1956) S.C.R. 958.
This was not an appropriate case in which to consider "oppression" as defined in the English Judges' Rules. The appellant's statement was not prompted by oppressive [sic] conduct. It was not forced from him. He had "a very strong basic wish to unburden himself". As stated in R. v. Isequilla, [1975] 1 W.L.R. 716, to exclude the statement there must have been "some conduct on the part of authority which is improper or unjustified".
As to the question whether the second and third statements were tainted, the condition of the accused, in a light hypnotic state, which would have excluded the statement then made, no longer continued at the time the statements in issue were made. The case was compa­rable to that in which a statement is made while in a state of shock. The fact that that statement might be inadmissible would not preclude the admission of a later statement made after the state of shock had ceased to exist. The only test to be applied as to the admissibility of the later statement would be whether the condition which rendered the first statement inadmissible had ceased. In the present case the evidence of the psychia­trist established that the light hypnotic state had ended before the later statements were made.
[Ibrahim v. R., supra; Boudreau v. R., [1949] S.C.R. 262; R. v. Fitton, supra; R. v. Isequilla, supra; Naniseni v. R., [1971] N.Z.L.R. 269; R. v. Smith, [1959] 2 Q.B. 35; McDermott v. R., (1948), 76 C.L.R. 501; Martin Priestley (note), 51 Cr. App. R. 1; Sparks v. R., [1964] A.C. 964; R. v. Williams (1968), 52 Cr. App. R. 439; R. v. Logue, [1969] 2 C.C.C. 346, referred to.]
APPEAL from a judgment of the Court of Appeal for British Columbia allowing an appeal by the Crown from the acquittal of the appellant on a charge of murder following a trial by judge and jury. Appeal allowed, Martland, Ritchie and Pigeon JJ. dissenting.
Dennis D. G. Milne, for the appellant.
R. D. Shantz, for the respondent.
The judgment of Martland, Ritchie and Pigeon JJ. was delivered by
MARTLAND J. (dissenting)—This is an appeal from a judgment of the Court of Appeal for British Columbia which allowed an appeal by the Crown from the acquittal of the appellant follow­ing a trial by a judge and jury. The Court of Appeal held that the trial judge had erred in law in refusing to admit in evidence two statements made by the appellant to a police officer. A new trial was ordered. During the morning of June 16, 1975, the appel­lant's mother, Anna Horvath, was murdered in her own bed by having her skull struck repeatedly with a blunt instrument. About midnight of the same day, the appellant, who was seventeen years of age at the time, was arrested for suspicion of murder, given the usual policy warning, and was taken to detention cells. He was there interrogated for about two hours and one half by two R.C.M.P. officers. No confession of any kind was made at that time.
The next day at about noon, the appellant volun­tarily underwent an interview which lasted some four hours with an R.C.M.P. polygraph operator, Staff Sergeant Proke, although no actual polygraph test was conducted. There is a complete taped transcript of what was said during the four hours. During the interview, the officer left the appellant alone in the interview room three sepa­rate times. During these three periods, the appel­lant reflected aloud in what the trial judge called monologues or soliloquies.
During the first monologue, the appellant vowed to avenge his mother. During the second mono­logue, the appellant asked his mother why she had asked him to kill her and he confessed having killed her by hitting her over and over again. When the officer returned after the second mono­logue, the appellant repeated the confession to him, and told him he had used a baseball bat and had disposed of it in a certain location. During the third and last monologue, the appellant asked his mother's forgiveness for having disclosed the incident.
Following the interview, the appellant provided the R.C.M.P. investigating officers with a written signed confession. He also accompanied them in a police car to the location where he had disposed of the baseball bat, a towel, gloves and socks, all of which were recovered.
The Crown sought to introduce as evidence in the case the statement made by the appellant to Sergeant Proke, following the second monologue, and also the written statement made at the end of the interview. A voir dire was held. The trial judge requested Dr. Stephenson, a psychiatrist who had been called by the Crown, to listen to the entire tape of the interview. He did so and prepared a written report which was received in evidence by consent.
The trial judge refused to receive the two state­ments in evidence. In making that decision he appears to rely upon a judgment of the Court of Appeal of New Zealand in Naniseni v. The Queen[1], and, in particular upon the following passage from the judgment of Turner J., who deliv­ered the judgment of the Court, at p. 274:
But in our opinion the word "voluntary", where used to describe the essential characteristic of an admissible confession, must be taken to signify that the will of the person making the confession has not been overborne by that of any other person. If the factor which is set up as rendering the confession not voluntary is something in the nature of threats, violence, force, or other form of compulsion, to use the words of our own Evidence Act, or, to adopt the enumeration of Dixon J. in R. v. McDermott, (1948) 76 C.L.R. 501, "duress, intimida­tion, persistent importunity, or sustained or undue insist­ence or pressure", whatever is alleged as an inducement must have been brought to bear on the prisoner by some other person, and to have influenced him to make the confession.
A summary of the reasoning which led to the refusal to admit the statements is contained in the judgment of the Court of Appeal, as follows:
I turn now to some of the things said by the trial judge in making his ruling to reject those two state­ments. He tells us that the tape was what he called auditioned by the psychiatrist, Dr. Stephenson, whom he described as a respected and well-known practitioner. He goes further and says, "As to Dr. Stephenson's evidence, the credibility of it is impeccable". I quote now in part from what the trial judge said when giving his ruling:
"What Dr. Stephenson said, and it was unequivocal and not questioned by the Crown, was that following the first soliloquy and continuing throughout until the end of the second soliloquy ... the interrogatee, namely, the accused Horvath, was in a light hypnotic state. Throughout the second soliloquy, I assume that the accused thought he was alone. When Proke came back into the room, after the second soliloquy, he had heard in it things which assured him what he had already firmly surmised. Dr. Stephenson notes that at that point Proke started re-examining, and it was then that the young man came out of his hypnotic state".
The trial judge then read two extracts from the written report of Dr. Stephenson which were admitted in evidence at the trial by consent, and those two paragraphs read as follows:
"It is axiomatic that a person under hypnosis (whatever its depth) cannot be forced to do or say anything to which he has not already given tacit consent. In my opinion, this subject had a very strong basic wish to unburden himself and his ambivalence over it is expressed in monologues 2 & 3.
In my opinion his initial denial was based on involun­tary repression of the painful material and not mere concealment. Therefore, when the painful material becomes conscious, his telling of it is essentially a voluntary act, even though there is a strong possibility he was in a light hypnotic state up to the end of the second monologue. In my opinion, by the time he begins to relate his mother's death wish he is in full and voluntary control of his faculties and remained so until the end of the tape."
That is the end of the extract from the psychiatrist's report. The trial judge continues:
"I accept that last paragraph, of course. After the end of the second interview, and after Sergeant Proke started again to question him he came out of the hypnotic state, but he had been in a state of total emotional disintegration."
[The trial judge was careful to point out that the phrase "emotional disintegration" was his phrase and not that of Dr. Stephenson.]
Then after some references to authorities on this subject, the trial judge continued:
"Had Dr. Stephenson not given the evidence of an hypnotic state, I would have, with some misgivings, have admitted this statement. It is the accumulation of all the factors, and I have dealt with those, plus the factor of the subject having been, for a sizeable part of the interview, in an hypnotic state immediately before the confession came out, that have caused me to reject the statement. This ruling is given with very real regret that police work as skilful as this should end in frustration of its purpose."
Again the trial judge said:
"It is the factor of hypnotism which has tipped the balance against admission in this case." The trial judge did not criticize the questioning technique used by Sergeant Proke in his interview with the appellant. He says of it that it was "the most skilful example of police interrogation that has ever come to my attention in 36 years as a lawyer and a judge".
Sergeant Proke testified that he did not attempt to hypnotize the appellant. The appellant did not give evidence either at the voir dire or at the trial.
The Court of Appeal, unanimously, held that the trial judge had erred in refusing to admit the statements. McFarlane J.A., who delivered the judgment of the Court, said:
Turning then to what I consider the principal ground of appeal, it is important, in my opinion, to remember that in cases of this sort the tribunal of fact is the jury. Our law has determined that there is one aspect of fact with relation to statements by accused persons which falls within the province of the judge in the first instance. The scope of the judge's duty and responsibili­ty in that connection is, however, a limited one. If statements by an accused are admitted in evidence, it ultimately is the responsibility of the jury to decide what weight, if any, shall be given to them. The extent of the field in which the judge must make findings of fact is, in my opinion, firmly established in our law.
He referred to the judgment of the Privy Coun­cil in Ibrahim v. The King[2], and the judgments of this Court in Boudreau v. The King[3], and in The Queen v. Fitton[4]. He went on to say:
It is therefore clear, and I must say it again, that the function of the judge so far as the facts are concerned is to determine whether the Crown has proved beyond reasonable doubt that the statement by the accused person was a voluntary statement in the sense that it has not been obtained from him by fear of prejudice or hope of advantage exercised or held out (or I insert inspired) by a person in authority.
After reviewing the reasons given by the trial judge for refusing to admit the statements he concluded:
Now tying the law as I tried to state it very briefly before I referred to the facts of this case, it is, in my opinion, clear that the trial judge applied a wrong test in determining whether these two statements should be allowed to go before the jury. Assuming that he was right in finding that there was an emotional disintegra­tion, the evidence is clear that the statements were not obtained by hope of advantage or fear [or] prejudice exercised, held out, or inspired, by a person in authority.
The question whether any weight should be attached to confessions made in the circumstances which I have described is a question for the jury, and not a question for the judge, in my opinion. The judge exceeded the scope of the functions which the law gives to him and I am afraid invaded the field of the jury.
In my opinion McFarlane J.A., correctly stated the law to be applied in Canada in determining the admissibility of a statement to a police officer by an accused person. The question as to whether a broader rule of exclusion than that stated by Viscount Sumner in the Ibrahim case ought to be applied was raised and met in the Fitton case. The facts in that case were as follows:
The accused, having been taken to the police station early in the morning, and there given an account of his movements on the previous evening, was left there all day, not formally under arrest. About 5 p.m. the police officers returned and told the accused that they had been working all day on the case (one of murder) and that they had discovered further facts indicating that what he had told them in the morning was untrue. The accused thereupon "blurted out" a damaging statement, whereupon he was stopped and given a formal warning in respect of a charge of murder, after which he made a statement, obtained in the form of question and answer, that was reduced to writing and signed by him.
The trial judge admitted the oral statement and the written statement in evidence. On appeal, the Court of Appeal for Ontario held that the statement was inadmissible. Aylesworth J.A. and Roach J.A. dissented. The Crown then appealed to this Court on the basis that the dissent was on a question of law. Kerwin C.J. and Cartwright J. were of the opinion that the dissent was on a question of fact, and, thus, the Court was without jurisdiction. The other seven members of the Court took the opposite view, The issue of law is delineat­ed in the judgment of Fauteux J. (as he then was) at p. 984, as follows:
With reference to the rule of law governing the admissi­bility of the extrajudicial admissions made by the respondent in the present instance, Roach J.A., for the minority, said [[1956] O.R. at pp. 725-6]:
There can be no doubt as to the rule. It was stated by Viscount Sumner in Ibrahim v. The King, [1914] A.C. 599 at 609, as follows: "It has long been estab­lished as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority."
There is no positive rule of evidence that if improp­er questions are asked of a prisoner in custody the answers to them are, merely on that account, inad­missible. The cases are reviewed by Kellock J. in Boudreau v. The King, [1949] S.C.R. 262 at 270 et seq., 94 C.C.C. 1, 7 C.R. 427, [1949] 3 D.L.R. 81. I do not review them here. In determining whether the answers made are admissible or not, the Court inevi­tably must come back to the primary question: Were they made voluntarily in the sense described in the rule as laid down by Viscount Sumner, supra.
(The italics are mine.)
On the other hand, Pickup C.J.O, for the majority, stated [[1956] O.R. at p. 714]:
In my opinion, the Crown does not discharge the onus resting upon it by merely adducing oral testimo­ny showing that an incriminating statement made by an accused person was not induced by a promise or by fear of prejudice or hope of advantage, That statement of the rule of law is too narrow. The admissions must not have been "improperly instigated or induced or coerced": per Rand J. in Boudreau v. The King, supra, at p. 269. The admissions must be self-impelled and the statement must be the statement of a man "free in volition from compulsion or inducements of authority".
Thus it appears that Roach J.A., with the concurrence of Aylesworth J.A., held the view that the decision of this Court in Boudreau v. The King did not change the law as stated by Viscount Sumner and that a declaration made by an accused is a voluntary statement if it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. In the view of Pickup C.J.O. and Laidlaw and Schroeder JJ.A., this statement of the rule is too narrow and in addition to proving that the statement has not been obtained by fear of prejudice or hope of advantage, the prosecution must further show that the statement was not otherwise influenced by the course of conduct adopted by the police, that it must be self-impelled, failing which it is not a voluntary one in the sense required by law.
Having concluded that an issue of law was raised by the dissent of Roach and Aylesworth JJ.A., Fauteux J. went on to say that he agreed with the views expressed by those judges. On this point, Kerwin C.J. was in agreement, as were all the other members of the Court except Cartwright J., who did not express any view on this point.
Rand J., in the Fitton case had this to say, at p. 962:
The Chief Justice of Ontario, speaking for the majori­ty of the Court of Appeal, has treated the expression "freely and voluntarily", used in Boudreau v. The King, as if it connoted only a spontaneous statement, one unrelated to anything as cause or occasion in the conduct of the police officers; but with the greatest respect that is an erroneous interpretation of what was there said. The language quoted must be read primarily in the light of the matters that were being considered. As the opening words show, there was no intention of departing from the rule as laid down in the authorities mentioned; the phrase "free in volition from the compulsions or inducements of authority" [Boudreau v. The King, supra, at p. 269] means free from the compulsion of apprehension of prejudice and the inducement of hope for advantage, if an admission is or is not made. That fear or hope could be instigated, induced or coerced, all these terms referring to the element in the mind of the confessor which actuated or drew out the admission. It might be called the induced motive of the statement, i.e., to avoid prejudice or reap benefit. As Professor Wigmore intimates, the terms promise or threat may be reduced to the word "inducement", but that again may raise a question of meaning; and the justification of the illustrative use of other words is that together they indicate the general conception of influence of a certain kind producing the admission. Even the word "volun­tary" is open to question; in what case can it be said that the statement is not voluntary in the sense that it is the expression of a choice, that it is willed to be made? But it is the character of the influence of idea or feeling behind that act of willing and its source which the rule seizes upon. Nothing said in Boudreau v. The King was intended to introduce a new quality of that influence.
In other words, to render a statement of the accused to a police officer inadmissible there must be the compulsion of apprehension of prejudice or the inducement of hope of advantage whether that apprehension or hope be instigated, induced or coerced.
The rule as to admissibility of a confession, in England, is stated in Halsbury's Laws of England (4th ed.), vol. 11, p. 231, para. 410, as being:
It is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in author­ity, or by oppression.
The footnote points out that this statement is contained in the introduction to the Judges' Rules and that it was approved by Lord Reid in Com­missioners of Customs and Excise v. Harz[5], at pp. 818 and 821.
The word "oppression" appeared for the first time in the Judges' Rules in 1964. "Oppressive questioning" was defined in The Queen v. Prager[6], as "questioning which by its nature, duration or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the suspect that his will crumbles and he speaks when otherwise he would have remained silent".
Nonetheless, in that case leave to appeal from conviction was refused. One of the grounds for the application was based upon the alleged inadmissi­bility of a statement made by the accused to police officers. The police officers had questioned the accused on three occasions in one day, from 9:15 a.m. to 12:30 p.m., from 5:45 p.m. to about 7:40 p.m. and from 7:40 p.m. to 11:30 p.m.
In The Queen v. Isequilla[7], the facts and con­clusions are set out in the headnote as follows: The defendant was the passenger in a car which stopped outside a bank. Three police officers, two of whom were armed, came towards the car. One police officer chased the driver, the second jumped into the car and placed handcuffs on the defendant and the third, holding a gun, went to the near side of the car. The defendant reached down to a briefcase at his feet. A police officer took the case and, on opening it, found an imitation gun and a note written by the defendant, which stated, "Keep calm. Hand over £3,000 or I'll blow your head off." The defendant was asked what the articles were for; he began to cry, saying that he had been stupid. He was taken to the police car and, still crying, he repeated that he had been stupid that he was short of money and was trying to get some from the bank. He was cautioned. He was obviously frightened and, on the journey to the police station and at the police station, he became more and more hysterical. He made a confession statement. At his trial, the defence contended that the statement was not admissible in evidence. The judge ruled that the police had acted properly and the statement was admissible. The defendant was convicted and appealed.
On the question whether the confession statement was inadmissible because (1) the police officers' conduct was such as to amount to an inducement although that was not their intention and they had acted properly: and (2) the defendant's mental state was such as to deprive him of the capacity to choose freely whether to confess or not:
Held, dismissing the appeal, (1) that a confession statement was inadmissible where there had been an improper or unjustifiable inducement by someone in authority making threats or promises; that fright caused by a justified violent arrest made by police officers carrying guns could not be an improper inducement and, accordingly, the defendant's fear caused by the police officers' acts and words during the arrest was not a ground for ruling that the confession statement was not voluntary.
(2) That the fact that the defendant was frightened and crying and later became hysterical was not a mental state that rendered the confession statement unreliable or untrustworthy so that it should be excluded.
In the judgment, following references to authorities, including Naniseni v. The Queen, referred to by the trial judge in the present case, the Court of Appeal, at p. 720, said this: Those cases, and there are many others, all as it seems to us proceed on this basis, that to rule a confession out as being inadmissible at law it must be shown it was not voluntary in the sense that it was procured by inducement of some form, either threats or promises offered by a person in authority at the particular situation in which the confession was made. The rule has not, as we see it, substantially changed over the years except in the following respects. In the first place this century has probably shown a more generous attitude to the suspect in the application of the rule; by that I mean that although the principle has remained the same, the courts have perhaps been over-generous in accepting as an inducement for present purposes something which would be unlikely to induce the average man.
Furthermore, the conception of the confession being made or the inducement offered in the presence of a person in authority has been extended to the point where the authority in question is perhaps minimal, but the principle is not affected.
The only possible addition to the principle which one finds in the English books at the present time is that exemplified in the recent case of Reg. v. Prager [1972] 1 W.L.R. 260, where it is established that interrogation by police officers if carried on to the point of oppression may be held to have destroyed the will of the suspect who was being interrogated, and thus prevented a subse­quent confession from being treated as a voluntary confession. That is I think another example of the confession ceasing to be voluntary because of some failure on the part of authority to observe the rules which naturally must govern situations of this kind.
The Court later went on to say:
In the first place we accept what Mr. Denny, for the Crown, has said, which to some extent has been made out by the reference to authority included in this judg­ment, that under the existing law the exclusion of a confession as a matter of law because it is not voluntary is always related to some conduct on the part of author­ity which is improper or unjustified. Included in the phrase "improper or unjustified" of course must be the offering of an inducement, because it is improper in this context for those in authority to try to induce a suspect to make a confession. Counsel for the Crown says, and we agree, that if one looks to the authorities there is no case in the books which indicates that a confession can be regarded as not voluntary by reason of the present grounds, unless there is some element of impropriety on the part of those in authority. That seems to be the case, and we can see no justification for extending the princi­ple today. I have already said that the law as to the admissibility of a statement by an accused person to a police officer was settled in the Fitton case. Counsel for the appellant has invited the Court to expand the grounds for ruling a statement to be inadmissible. This is not an appropriate case in which to consider "oppression" as defined in the English rule because the trial judge made no find­ing of oppression by Sergeant Proke. As is pointed out by the Court of Appeal, he would have admit­ted the statement had it not been for the evidence of Dr. Stephenson of an hypnotic state. In this connection the doctor's report is significant. I repeat these passages:
It is axiomatic that a person under hypnosis (whatever its depth) cannot be forced to do or say anything to which he has not already given tacit consent. In my opinion, this subject had a very strong basic wish to unburden himself and his ambivalence over it is expressed in monologues 2 & 3.
In my opinion his initial denial was based on involuntary repression of the painful material and not mere concealment. Therefore, when the painful material becomes conscious, his telling of it is essentially a voluntary act, even though there is a strong possibility he was in a light hypnotic state up to the end of the second monologue. In my opinion, by the time he begins to relate his mother's death wish he is in full and voluntary control of his faculties and remained so until the end of the tape.
The appellant's statement was not prompted by oppressive conduct. It was not forced from him. He had "a very strong basic wish to unburden himself".
I agree with the statement in the Isequilla case, already cited, that to exclude the statement there must have been "some conduct on the part of authority which is improper or unjustified".
Since preparing the above reasons I have had the opportunity to consider the reasons of my brother Beetz and I would like to make a few additional comments.
The Crown did not seek to introduce in evidence the statements made by the appellant while he was in, what Dr. Stephenson describes as "a light hypnotic state". The two statements which the Crown sought to introduce in evidence were made after he was "in full and voluntary control of his faculties". Had the Crown sought to introduce the statements made while the appellant was in a light hypnotic state, it is clear that they would not have been admitted by the trial judge, but the refusal to admit them would not have been because of threats or inducements by a person in authority, but because the appellant, at the time those state­ments were made, was not in a condition which would make it safe to admit them.
Reference has been made to the judgment of Lord Parker C.J. in R. v. Smith[8], at p. 41, where he says:
The court thinks that the principle to be deduced from the cases is really this: that if the threat or promise under which the first statement was made still persists when the second statement is made, then it is inadmiss­ible. Only if the time-limit between the two statements, the circumstances existing at the time and the caution are such that it can be said that the original threat or inducement has been dissipated can the second statements be admitted as a voluntary statement.
All of the cases, to which. reference has been made, which consider the proposition stated above, are cases which had to consider whether a threat or promise which rendered an initial statement inadmissible continued to have effect when a later statement was made. The question was whether the later statement was tainted because of what had occurred prior to the making of an earlier statement.
In my opinion that question does not arise in the present case. There is no evidence of threats or inducement which led to the making of a statement. The objection to the possible admission of the statement made while in a light hypnotic state is not against the conduct of persons in authority when that statement was made. The objection would arise because of the condition of the appel­la