Wylie (Borneo) CJ (delivering oral judgment):

The appellant was convicted of having under his control one hand-grenade without lawful authority. He was tried before a Judge alone and during the trial the admissibility of the statement he made was challenged and this issue was tried separately. On that issue, he gave evidence on oath. His evidence concerned principally the circumstances under which he gave the statement, and much of this statement was relevant only to that issue and not relevant on the issue of his guilt or innocence of the offence charged. However, in the course of his evidence he explained how he came to know of the existence of the hand-grenade and where it was hidden. That evidence, if true, established that the hand-grenade was not under his control but under the control of his friend who had merely told him of its existence and the location.

The statement was admitted and in the course of a written judgment on this issue, the Judge came to the conclusion that the appellant in his evidence had told lies concerning the circumstances leading to the making of the statement. Quite properly the Judge expressed no view at that stage on his evidence as to how he came to know of the existence of the hand-grenade. This is the view that the Court takes of his judgment notwithstanding the submissions that were made on behalf of the prosecution this morning. The language used by the learned Judge relates only to the evidence concerning the circumstances under which that statement was taken.

At the close of the case for the prosecution there was a submission of no case to answer. The Judge over-ruled this submission and in his judgment on this issue he held in favour of a submission made on behalf of the prosecution that the evidence given on the issue of the admissibility of the statement should not be taken into account on the question whether there was a case to answer.

In his defence the appellant made an unsworn statement from the dock in the course of which he said:

As to the facts of the hand-grenade I have already related to the Court.

This was an obvious reference to the earlier evidence on oath concerning how he knew of the hand-grenade.

In the course of his judgment the Judge said in reference to that evidence:

I do not think I should consider that evidence for the purpose of this judgment.

The only other reference to the defence in the judgment is a repetition of what the appellant said from the dock. Nowhere does the Judge express any view on the evidence given by the appellant to the effect that it was a friend who told him of the location of the hand-grenade, or appear to consider this evidence at all.

Counsel for the appellant submitted that the Judge, in considering whether or not the offence was proved, should have taken into account the evidence given during the enquiry as to the admissibility of the statement, and that his failure to do so meant that the defence had not received consideration. For the prosecution it was submitted that the Judge ruled correctly in refusing to take into account the evidence in question.

This is apparently a novel point in the case of a trial by a Judge without a jury, and neither Counsel could submit any authority. It is not necessarily a simple question. For the evidence on the issue of admissibility of a statement may include evidence that is inadmissible on the trial for the offence. The issue of the admissibility of a statement generally takes the form of a separate enquiry. To that extent, the circumstances are different from those in which, in the course of a trial without this separate enquiry, evidence may become admissible because it is relevant to a particular issue, but, once admitted, become part of the evidence for all purposes.

However, in this trial this issue does not require further consideration because there was an added factor introduced by the fact that the appellant referred back to his evidence on oath concerning the hand-gre