Confessions Mugs
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Evidence - Confessions...
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Confessions + Admissions 1.
PRIMER PARAGRAPH FOR RELATION TO HEARSAY
•
Oral or written evidence of A’s statement is hearsay, because it is adduced to prove the truth of the facts asserted in the statement
•
Although HSE is generally inadmissible, confessions & admissions are established exceptions to the hearsay rule both under common law and under s 258(1) of the CPC (or s 21 of the EA). However, the starting point in law is that confessions are inherently unreliable, such that they are only admissible if there was no impropriety in obtaining it, as enshrined in s 258(3) f the CPC o
The nature of a confession as a ‘statement made against the interest of its maker’ (Lee Chez Kee at [102]) prima facie gives the court reason to believe that it is true & reliable because it is contrary to common sense for a person to make a statement that is against one’s interest
2. S 258(1): WAS IT A STATEMENT? •
The issue is whether _____________ falls within the scope of s 258(1).
•
To this end, s 258(1) is an extremely wide provision that covers: o
(a) Any statement made by A (whether admission/confession or not);
o
(b) Whether oral or in writing;
o
(c) Made at any time (before or after A was charged);
o
(d) Regardless of whether in the course of any investigation carried out by a law enforcement agency
•
‘Statement’ is defined in s 257 of the CPC as ‘any representation of fact, whether made in words or otherwise’, with the word ‘otherwise’ presumably including representations of fact which A makes via conduct
3. S 258(2): WAS IT MADE TO AN OFFICER HOLDING THE RANK OF SERGEANT OR ABOVE? •
Statement was made to a Police Officer o
Since the present case is a statement made to the police, (Officer’s name) must hold the rank of sergeant or above per s 258(2), which is satisfied here.
•
All other Law Enforcement Officers (e.g. CID) o
Since the statement in the present case was not made to the police, the requirement of the rank of sergeant in s 258(2) is not applicable.
4. S 258(3): VOLUNTARINESS TEST •
The statement must pass the voluntariness test in s 258(3). 1
o
The voluntariness test is partly objective & partly subjective (Lim Thian Lai, Kelvin Chai) and requires proof that: §
ITP was present; (Objective)
§
ITP operated on the mind of A; (Subjective)
§
ITP proceeded from a person in authority; (Objective)
§
ITP was in reference to the charge; (Objective)
§
ITP had sufficient grounds for A to reasonably suppose that he would gain any advantage or avoid any evil of a temporal nature if he confessed (Objective)
•
The burden is on the Prosecution to prove the voluntariness of the statement beyond all reasonable doubt (s 106, Martmontree), but it need not remove all doubt of influence or fear (Martmontree’s rejection of Law Say Seck)
•
Conversely, to render the statement inadmissible, A must show reasonable doubt as to the existence of an inducement, threat or promise (Lim Boon Heng)
•
Under s 279 of the CPC, the issue of admissibility is to decided at an ancillary hearing or voir dire
• Rationale •
The voluntariness test exists because studies have shown that it is not uncommon for innocent people to confess to crimes which they did not commit, thereby undermining the ‘common sense’ argument that confessions & admissions are inherently reliable
Kassin and Gudjonsson, (2005) 24 Scientific American Mind 32: Three major types of false confessions: •
(1) Voluntary false confessions: o
People might voluntarily give a false confession for reasons including a pathological desire for notoriety, a conscious or unconscious need to expiate feelings of guilt over prior transgressions, an inability to distinguish fact from fantasy, and a desire to aid and protect the real criminal.
o
Interrogative suggestibility – certain people have a psychological make-up which makes it difficult for them to resist the pressure of interrogation, such that they are by nature more willing to accept suggestions made by their interrogators.
•
(2) Compliant false confessions: - voluntariness rule addresses this o
The suspect confesses to achieve some end – to escape an aversive situation, to avoid an explicit or implied threat, or to gain a promised or implied reward.
o
No thought may be given to the consequences of confessing or there may be a belief that the record can be put right later.
o
Charateristically, the confession will be retracted once the stress induced by the interrogation has dissipated.
•
(3) Internalized false confessions: - oppression rule addresses this o
During interrogation, some suspects – particularly those who are young, tired, confused, suggestible and exposed to false information – come to believe at least temporarily that they committed the crime in question, even though they did not.
o
A compliant suspect who confesses may come later to believe the confession.
• Essay Shit – Why do we have a Voluntariness Test Unreliability Principle 2
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Exclusion of confessions is based on ensuring the reliability of the obtained confession.
Poh Kay Keong v PP [1995] 3 SLR(R) 887 •
L P Thean JA HELD:
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The purpose or object of s 24 EA [now replaced by s 258(3) CPC] is to ensure the reliability of a confession, and is founded on the premise that a confession brought about as a result of an inducement, threat or promise is not reliable and therefore should be excluded.
Roberts & Zuckerman, Criminal Evidence •
The scope for generating unreliable confessions is manifest because police detainees are vulnerable to their statements being distorted or manipulated.
•
Questioning often occurs in a tense atmosphere and under conditions of relatively low visibility limiting opportunities for external scrutiny.
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Suspects who are innocent often also experience considerable strain, while those who genuinely have something to hide or fear will be doubly susceptible to confusion and manipulation.
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HOWEVER, reliability in itself is insufficient to explain the rule excluding accused’s statement. Arguably, how the evidence was obtained, even if it does not affect reliability, should be important as well
Ian Dennis, The Law of Evidence •
The EA should be concerned with not just the rectitude of the decision, but with the LEGITIMACY of the decision – this involves the notions of INTEGRITY AND ACCEPTABILITY. Nemo Debet Principle
•
The nemo debet principle states that nobody ought to be compelled or required to betray himself.
R v Sang [1980] AC 402 (HL) •
Lord Diplock HELD:
•
The underlying rationale, though it may originally have been based upon ensuring the reliability of confessions, is now to be found in the maxim nemo debet prodere se ipsum – no one can be required to be his own betrayer
•
HOWEVER, it is unclear how strictly the nemo debet principle should be applied. Practical considerations indicate that some form of pressure needs to be applied in order to extract a confession, even if it is a truthful one. Protective Principle
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The protective principle safeguards a suspect’s rights by requiring the police to meet certain minimum standards in his interrogation and treatment.
Andrew Ashworth, ‘Excluding Evidence as Protecting Rights’ [1977] Crim L Rev 723 •
Exclusion of confessions and admissions occurs on the basis that exclusion is remedial in nature.
•
This principle is concerned with what happened to the particular accused, and supports whatever minimum standards for the treatment of suspect are demanded by a legal system o
If a suspect has not been treated in accordance with a particular minimum standard, he should not suffer any disadvantage thereby – the accused should be provided with an adequate remedy where he has been improperly treated such that he has suffered a disadvantage
•
Criticisms of Protective Principle: 3
o
o
It is difficult to identify what these minimum standards of treatment are. §
Where does the court draw the line as to what constitutes torture?
§
Does the accused have a right against being kept in a cold room?
Even if the protective princuple is indeed the rationale, it does not necessarily follow that the only appropriate remedy is to exclude the evidence obtained. §
The strength of the response should be in some way proportionate to the degree of disadvantage to the accused – e.g. remedy could range from exclusion of evidence to mitigation of sentence or simply damages
•
Disciplinary/Deterrence Principle o
The disciplinary/deterrence principle seeks to correct police behaviour by denying the prosecution’s access to evidence which has been improperly obtained.
o
Hence, there is no regard to whether improper conduct resulted in any disadvantage suffered by the accused – if evidence is excluded due to disciplinary reasons, the accused is simply a fortunate recipient of a collateral benefit.
o
If police are denied the use of evidence in the present case because of the failure to achieve acceptable standards of conduct, they will be more likely to achieve such standards in future cases.
•
PP v Sng Siew Ngoh [1996] 1 SLR 143 (HC)
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HELD:
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The basis of the proviso to s 122(5) of CPC is not rooted in the reliability or otherwise of the statement made to the police, but is intended clearly to prevent any impropriety on the part of the interrogators
•
Criticisms: o
The efficacy of the disciplinary message is suspect – the police arguably do not suffer from an exclusion of the statement
o
Also, exclusion of evidence is the wrong vehicle for discipline
o
It is not the business of the court to discipline the police (SM Summit Holdings v PP [1997] 2 SLR(R) 138).
•
Judicial Integrity Principle o
The judicial integrity principle states that judicial reliance on evidence that fails the voluntariness test would compromise the integrity of the administration of justice.
o
Three distinct rationales for excluding confessions justified based on preserving judicial integrity and the administration of justice: •
(1) Court-centred: o
Out of regard for its own dignity as an agency of justice and custodian of liberty, the courts should not have a hand in endorsing such injustice
•
(2) Public Conduct: o
•
Admission of such evidence may tend to increase the amount of lawbreaking
(3) Public Attitude: o
Admission of such evidence may cause the public to lose respect and confidence in the administration of justice
•
Evaluation: 4
Wong Keng Leong Rayney v Law Society of S’pore [2006] 4 SLR(R) 934 (HC) •
V K Rajah JC (as he then was) HELD: •
Cites Ashworth, “Re-drawing the Boundaries of Entrapment” (2002) Crim L Rev 161: [52]
•
Criminal justice would lose its moral authority if courts did not insist that those who enforce the law should also obey the law. It is therefore, at root, a principle of consistency – that it would be inconsistent for the courts, as guardians of human rights and the rule of law, to act on evidence obtained by methods which violate human rights and/or the rule of law.
C/f Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239 (HC) •
HC HELD: •
The view in Wong Keng Leong Rayney was expressed without the benefit of hearing arguments about the effect of the EA and the separation of powers [148]
•
Conclusion
Pinsler, Evidence and the Litigation Process •
The key is to identify the principle(s) which underpin the test for excluding confessions, which include the reliability, nemo debet, disciplinary, protective and judicial integrity principles
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The latter four principles are not foundational in the law of evidence as they are not specifically concerned with the correctness of the court’s decision, and hence are not primarily concerned with reliability of the information presented to the court.
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These
principles
will
affect
how
strictly
or
broadly
the
court
decides
to
exclude
confessions/statements of the accused when faced with the following features: o
(1) Cogency of the evidence §
Reliability principle – the more cogent, the more it should be included.
§
Nemo debet and Protective principles – focus is on what was done to the accused as opposed to what resulted
§
Disciplinary and Deterrence principles – the cogency of the evidence should not have an effect
§
Judicial integrity principle – it depends on which viewpoint one adopts •
Court-centred: cogency should not affect
•
Public centred: cogency must be weighed against public perception – guilty going free may undermine public confidence in system
o
(2) Severity of the breach of rules §
Reliability principle – the more severe, the more likely it is unreliable
§
Nemo debet principle – focus is on whether the conduct was a sufficiently unacceptable way of persuading the suspect to incriminate himself; once this threshold is crossed, the seriousness of the breach becomes irrelevant
§
Protective principle – the more serious the breach, the more disadvantaged the accused, the greater the remedy.
§
Disciplinary and Deterrence principles – the more serious the breach, the stronger the case for deterrence and a stronger message
§
Judicial integrity principle – for all viewpoints, the more serious the breach of rules, the more the courts must act on it 5
o
(3) Seriousness of the offence §
Reliability principle – there should be no effect because the importance of convicting the guilty and not convicting the innocent are arguably of equal weightage
§
For nemo debet and protective principles – seriousness of offence should be irrelevant •
Focus is on the conduct which brought about the acquisition of the incriminating evidence
§
Disciplinary and Deterrence principles – seriousness of the offence should be irrelevant •
§
Otherwise, this would blunt the disciplinary message
Judicial integrity principle – it depends on which viewpoint one adopts: •
Court-centred: seriousness may affect in the sense that the officer’s conduct was justified taking into account the seriousness of the offence
•
Public-centred: must weigh whether public confidence increase or decrease o
If serious, guilty and never convict because exclude evidence, public lose confidence.
o
If serious, not guilty, convict because never exclude evidence, public also lose confidence
• S 122(5) à S 258(3) •
The voluntariness test under s 122(5) of the Old CPC is the same as the current s 258(3) voluntariness test. Therefore, cases decided under s 122(5) of the Old CPC are good law regarding the application of s 258(3)
A. Objective Test: Was there ITP? •
On the first issue, there must objectively be an ‘inducement, threat or promise’ (ITP) that was made to A (Kelvin Chai). In this case, the issue is whether ____________ can be considered an ITP under s 258(3). o
This provides a safeguard against A arguing that their confessions are inadmissible solely based on their subjective suppositions of an ITP.
•
A self-perceived inducement does not amount to an inducement under s 258(3) (Lu Lai Heng) o
Whilst relatively older case law indicates that the words ‘you had better tell the truth’ or such expressions would necessarily amount to ITP (Lim Kim Tjok), the new judicial attitude is that the import of such words should be assessed in the context of the individual case (Lim Thian Lai at [18]). This is because the courts are of the view that an officer can legitimately remind a witness that he should tell the truth and not tell lies.
o
However, where such words are combined with a representation that the accused would avoid death penalty if he gave a “good” statement, such conduct may amount to an ITP (Poh Kay Keong).
•
A misrepresentation of the law can amount to an ITP (PP v Mazlan)
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Where the nature of the charge is serious, and the inducement is trivial, the test of voluntariness often would not be satisfied (Yeo See How)
• Cases •
Lim Kim Tjok – court held that the words ‘you had better tell the truth’ or equivalent expressions imported a threat of inducement and thereby rendered A’s statements inadmissible. 6
o
However, as noted by Osman’s citation of Ramasamy, the facts of each case have to be looked at individually. While such utterances have previously been treated as necessarily establishing a threat or an inducement, the current view is that the import of such words should be assessed in the context of the individual case (Lim Thian Lai at [18]).
•
Osman bin Din – A objected to a statement he had previously made by him on the grounds that (1) He was warned to tell the truth or he would be beaten up at the gallows, and (2) He was told that he should admit to the offence to receive a light sentence o
CoA did not want to disturb TJ’s finding that A was lying, but held that even if the allegations were true: §
Did not see how (1) could amount to a threat or inducement in the circumstances;
§
Did not find (2) sufficient to give the appellant any reasonable grounds for supposing that he would gain any advantage or avoid any evil of a temporal nature by giving the statements.
•
Kelvin Chai – A objected that he had given his statements involuntarily as he was allegedly told to “tell the truth” and also that the IO told him that “the rope was around his neck”, and he thought that this meant that the officers would help take the rope off his neck, by which he thought that he would face a lesser charge. o
CoA cited Osman: Recent cases have stood for the proposition that the question of whether words to the effect of ‘you had better tell the truth’ imports an ITP should be approached in a common sense way and in the context of the individual case §
A alleged that he was told to tell the truth because the officer could tell if he was lying merely by looking into his eyes. CoA disbelieved the evidence of the accused and held that the statements were admissible even if the allegations were true (at [54]).
§
Agreed with the TJ that a call to co-operate could not be regarded as a threat or inducement even if it was accompanied, as in this case, by a remark that the first accused would be allowed to call his wife if he co-operated.
•
Poh Kay Keong – A was arrested for consumption of drugs. The drugs were found in a flat that A resided in belonging to A’s brother & sister-in-law. Investigating Officer allegedly made the following statements: o
(1) 'You still like that, no choice. I will charge your brother, your sister in law. They are house owner. I recommend that they cheong kong [confiscate] the house.’
o
(2) ‘Your key cannot open the door [to the flat] why you scared? Won't get hanged. You give me a good statement. I know what to do.'
o
CoA held that (1) amounted to a threat, and (2) also amounted to an ITP because it was “calculated to influence his mind", as the meaning & effect of the statement amounted to a representation that A would not be subject to the death penalty since his key couldn’t open the door to the house containing the drugs, and he should therefore just give a good statement and leave it to the officer to make out the appropriate charge
•
Lu Lai Heng – CoA held that A’s belief that the police would leave his mother alone if he admitted to ownership of the drugs did not vitiate the confession as no such inducement came from the investigation officers.
•
Mazlan bin Maidun – A failure to explain s 121(2) (Privilege against self-incrimination, new s 22(2) – person examined shall be bound to state truly what he knows of the facts & circumstances of the case, except that he need not say anything that might expose him to a criminal charge, penalty, or forfeiture) to A will not render the statement inadmissible. However explaining the first part (a person examined shall be bound to state truly what he knows of the facts & circumstances of the case) and omitting the 7
second part (except that he need not say anything that might expose him to a criminal charge, penalty, or forfeiture) may amount to an ITP. o
CoA held that removal of the restriction against the admission of statements made by a person under arrest if such statement were not recorded in substantial compliance with Schedule E was intended to render such statements admissible so long as they are not tainted by inducement, threat or promise
o
If a police officer fails to comply with s 121 (s 22), he, not the accused, feels the effects of the breach. §
He may be liable in civil proceedings for breach of statutory duty, or a complaint may be made about him to the appropriate disciplinary tribunal, or he may be found guilty of a minor offence under s 225C of the Penal Code.
§
However none of these courses of action has any effect on the admissibility and evidential value as against the accused of the statement thus obtained.
o
Admissibility is still governed by s 122 (s 258).
o
But, here, the interpreter explained the first portion of s. 121(2) (s 22 – see above) and failed to explain the proviso: §
The effect of this partial explanation was that the Df was told that he was bound to tell all the truth
§
In the context of these facts it may be said that the failure to inform a person of his rights in circumstances where a positive duty has arisen to give such information may amount to an inducement within the meaning of the proviso to s 122 (5) (s 258(2)), because it would be reasonable to assume that such an omission might have caused that person to say what he might not otherwise have said.
§
Conceded that there was at least a reasonable doubt as to whether he would have said the same things if he had been informed that he was entitled to refrain from selfincrimination
o
As such, the seeming lack of choice might be an inducement to follow the only course of action which apparently remains
B. Subjective test: Did ITP operate on A’s mind? •
On the second issue, the ITP must have subjectively operated on A’s mind through hope of escape or fear of punishment connected with the charge (Lim Thian Lai, Kelvin Chai) o
Did not trust policeman?
o
Tough guy who is not easily intimidated?
• Cases •
Lim Thian Lai o
CoA set out the elements of the voluntariness test – (1) Objective component relating to determining whether ITP was made, and (2) Subjective component related to determining whether ITP if made, did operate on A’s min. Both components must be present before a statement made by A should be excluded on the grounds that it was not voluntarily made.
o
The alleged inducement by the police officers to reduce A’s charge was held not to have subjective limb was not satisfied on the facts of the case: §
A made repeated assertions that he mistrusted all police officers, and the particular officers who interrogated him, right from the onset; 8
§
He also admitted in xx that he never believed that the officers would in fact keep their word;
§
Finally, CoA took into consideration that A was not a “babe in the woods”, who might easily succumb to the fear or intimidation, and did not believe that the inducement led him to confess
•
Yeo See How – A was convicted of trafficking in heroin, and alleged that the statement he had made was involuntary due to: o
(1) Inducements in the form or offers of cigarettes, family visits and leniency that were held out;
o
(2) Oppression as he had felt cold and hungry and had experienced gastric pain (and was not given medication) – KIV this;
o
CoA held that considering the severity of the charge, the promise of cigarettes and a visit by the family was insufficient to amount to an ITP that would have operated on his mind
C. Did ITP proceed from a person in authority? •
Thirdly, the inducement must have proceeded from a person in authority. A person in authority is anyone who has authority or control over A or the proceedings against him, AND must be regarded as such by A (Lim Boon Hiong) o
Policemen & other law enforcement officers are indisputably persons in authority for the purposes of s 258(3) (Chye An San);
o
However, a friend is not considered a person in authority (Deokinan); §
A was arrested on suspicion of murder and robbery. In order to get information from him, they used his good friend as an informant. Df confessed to his friend not knowing that he was an informant. PC held that the friend of the accused is not a person in authority.
o
Fellow worker is not a person in authority (Re Lee Kim Cheng) §
A worked in a perm parlour. When one of the customer’s rings went missing, a coworker went to A’s house and questioned her about the rings. She admitted that she took the rings. The court held that a fellow worker was not a person in authority, and the HSE exception for confessions/admissions did not apply.
•
While it is unclear whether an objective or subjective test applies to this limb, it is submitted that a subjective test should be preferred. o
As long as A subjectively believes that the person proffering the ITP has authority over his case, then the limb should be satisfied because there is a real risk of false confession because A may act on the inducement which he believes was held out by a person in authority;
o
Furthermore, the fact that the representation did not come from a person in authority does not necessarily guarantee the reliability of a confession.
• Separate Situation for Interpreters/Constructive Authority •
On the facts of the case, since the maker of the ITP was (occupation), A may have subjectively believed that he was a person of authority
•
Deokinan, cited in approval by HC in Lim Boon Hiong: A non-police officer could be cloaked with constructive authority if the ITP was made: o
In the presence of persons of actual authority; and
9
o
A subjectively believed on reasonable grounds that since the people with actual authority happened to be around and heard the inducement, but took no step to dissociate from it, the threat was made with authority
•
Chinty’s lacuna scenario? o
It is submitted that whether an interpreter should be regarded as a person of authority or not should not depend on the chance of whether the person in actual authority happens to be around at the time the ITP is made.
o
Such situations are easy to manipulate – you can just make the interpreter make the threat and then stay outside
o
Furthermore, the crux should be how the ITP affects reliability of the statement. If it can be shown that the inducement was made and pressure was placed – that’s enough to show it’s potentially unreliable. Whether ITP was made by a person in authority or not only affects the calculus of how much pressure was placed on A.
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Evaluation
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Why authority? •
HHL thinks its to reign in power of officers of the state – deterrence/discipline rationale
•
So inducement that’s not from authority may just go to weight rather than admissibility – because inadmissibility is a big fucking deal and can just function as a normative signal
D. Reference to the Charge •
Fourthly, the ITP must have reference to the charge. Adopting a purposive interpretation, the CoA in Poh Kay Keong held that this requirement is satisfied if the ITP was made to obtain a confession relevant or relating to the charge in question.
•
While this approach runs contrary to the clear words of s 258(3) (‘having reference to the charge against the accused’), per Poh Kay Keong, a literal interpretation would be ‘illogical’, as it would not cover many situations, including a threat to beat up A’s family o
Poh Kay Keong - The purpose of s. 24 is to ensure the reliability of a confession and is founded on the premise that a confession brought about as a result of an inducement, threat or promise is not reliable and therefore should be excluded. §
S 24 should be given a purposive construction, so that an inducement, threat or promise has reference to the charge if it was made to obtain a confession relevant or relating to the charge in question
E. Gain any Advantage or Avoid any Evil of a Temporal Nature, in Reference to the Proceedings Against Him (O b j e c t i v e T e s t ) •
•
Fifthly, the ITP must have sufficient grounds for A to reasonably suppose that he would: o
Gain any advantage of a temporal nature; or
o
Avoid any evil of a temporal nature;
o
In reference to the proceedings against him
Focus is on the state of mind of A, and is irrespective of the intention of the interrogator. Therefore the requirement is not met if A knows that the interrogator was just making empty ITPs.
• Cases •
Poh Kay Keong – CoA held that the ‘reference to proceeding against him’ is effectively null right 10
•
The advantage or evil has reference to proceedings against A if the advantage gained or evil avoided was gained or avoided by the making of a statement relevant to the charge brought against A – will always be fulfilled because ‘relevant’ is pretty wide.
•
Ismail bin Abdul Rahman v PP, where A disputed the voluntariness of four statements he made after being arrested under the Arms Offences Act, as the officer had made the following statements: o
Officer had told him not to tell lies as the govt had spent thousands of dollars to send men like the officer for courses and that he was able to determine if a person was lying;
o
Officer had asked him to cooperate and tell the truth and if he did so, the officer would speak to the judge and TRY to get a lesser sentence for the accused;
•
CoA held that there were no reasonable grounds for A’s supposition that A could gain any advantage in reference to the proceedings against him, as words to the effect that A should tell the truth were coupled with representations that A would not be able to lie without detection, and that if he told the truth, the officer would try to get him a lighter sentence o
Court compared the facts of the case to Poh Kay Keong – “you will not hang” vs. “I will try to get you a lighter sentence”, and found that the latter statement had a lower degree of assurance.
o
Therefore held that A had no reasonable grounds to suppose that he would gain any advantage or avoid any evil by giving the statements
•
Evaluation
•
Ismail failed to draw the line for when A has ‘reasonable grounds’, and while it does make sense that the higher the degree of assurance, the more likely it is for there to be an inducement, it is submitted that if someone’s life hangs in the balance, it is perfectly reasonable for him to grasp at every opportunity to save himself, however slight they may be. o
It doesn’t really matter whether a guy categorically promises to save you, or just to do his best – the more severe the charge, then the lower the degree of assurance should be necessary to find an ITP
5. OPPRESSION •
Although statements tended to prove the truth of their contents constitute hearsay evidence, they are nevertheless admissible under s 258(1) of the CPC. In this case, X should argue that his statement is inadmissible under s 258(3) as oppression was present (Explanation 1 of s 258(3)).
•
Oppression is found when: o
(1) A person in authority acts in a manner
o
(2) That saps the free will of A,
o
(3) Who then gives a statement to that person in authority, and
o
(4) A had grounds to believe that he would gain an advantage or avoid an evil of a temporal nature & related to the proceedings by giving the statement.
•
A only needs to raise a reasonable doubt that the circumstances surrounding his giving of the statement were so oppressive such that his free will was sapped to the effect that he spoke when he otherwise would have remained silent (Panya Martmontree at [32], Lim Boon Hiong at [36]) o
However, it would go too far to submit that the slightest suspicion of ITP or assault is sufficient to render the statement inadmissible (Panya Martmontree at [32])
11
A. Person of Authority •
See above
•
A literal interpretation of the provision would require that the statement be made by an officer as a person of authority
•
However: o
Chinty argues that this doesn’t cover a situation where A is oppressed by one person and gave his statement to another
o
This also doesn’t reflect the common law position, which doesn’t require a link between the oppressor and the person in authority who takes his statement
o
However, Tey Tsun Hang indicates that courts do not apply the literal reading of the Explanation. §
As per Woo Bih Li J at [89], Minister Shanmugam at the second reading of the CPC Bill was clear that the admissibility test “developed by our courts in Seow Choon Meng and Gulam bin Notan is now codified in Expln 1” and in SCM, it was stated that oppressive questioning may rise from the nature, duration, or other attendant circumstances of the questioning, which suggests that there can be a finding of oppression even if there is no overt act from a person in authority
§
Since legislative intention was not to override SCM, Woo J opined that notwithstanding the reference in Expln 1 to the act of a person in authority, no such overt act is required to constitute oppression under s 258(3)
•
As such, it is submitted that even if the oppressive conduct was done by a 3P, it is submitted that it nonetheless flowed from the person in authority who failed to do anything that would put a stop to the oppressive conduct.
B. Sapped Free Will •
It has been conceded that robust interrogation is an essential aspect of police investigation (Seow Choon Meng) and that the police have no obligation to remove all sources of discomfort (Yeo Soon How).
•
Therefore courts generally have set a high bar for oppression, taking the view that unless it can be proven that A’s ‘free will is sapped/overborne’ by circumstances preceding the taking of the statement, such that A could not resist making the statements which he would otherwise not have made, the treatment does not amount to oppressive conduct (Tan Boon Tat, Kelvin Chai).
•
Case law also indicates that this test of whether A’s free will was sapped is an objective inquiry focusing on the actions of the persons in authority. o
Per Tey Tsun Hang at [113]: The litmus test for oppression is whether the investigation was, by its nature, duration, or other attendant circumstances, such as to affect A’s mind & will such that he speaks when he otherwise would have remained silent
o
However, it is submitted that oppression cases should be subject to the caveat that there are differences in the characteristics of each suspect, and what is oppressive for one may not be so for another à should be a subjective inquiry
• Sustenance/Food Cases •
Not realistic to take the sweeping stand that every failure to offer accused sustenance constitutes oppression to render statements involuntary (Fung Yuk Shing at [17]). 12
•
Lim Kian Tat – A was charged with murder, and had made 5 statements, oral or written. At trial, he alleged that the fourth statement: o
Was taken during an 18-hour interrogation, with an hour's break.
o
Was taken during the fourth night in a row in which the accused did not have any adequate sleep
o
HC was satisfied that A had spoken when he would not have otherwise, and held that the statements were given under the circumstances of oppression
•
Tan Choon Huat – A was arrested before he had taken breakfast and was denied food for 6 hours. He was also denied sleep and rest for over 15 hours. The court held that the statements were given under the circumstances of oppression (at [12])
•
Fung Yuk Shing – A had been without food or drink for 7 hours while in custody, and was additionally anxious at his arrest and charge with a capital offence. o
CoA held that it is “a question of fact as to whether failure to offer an accused food and drink constitutes a ‘threat’ or an ‘inducement’ which might render any statement he made involuntary”, but qualified that there were “varying degrees of seriousness as far as such failures are concerned.” §
He may be continually grilled for days on end without being given food and drink, or he might go without such sustenance for a few hours.
§
The failure to offer sustenance might be a deliberate ploy to weaken the accused’s will or it might be a genuine oversight amidst the flurry of investigative activity.
o
Opined that it was not realistic to take the sweeping stand that every failure to offer an accused sustenance constitutes a ‘threat’ or an ‘inducement’ of such gravity as to automatically render any statement he makes involuntary, and that numerous factors must be taken into account.
o
In the present case: §
A was without food and drink for seven hours within the same day
§
Prior to his arrest at the airport at about 3pm, he had eaten a meal on board the plane.
§
At no point during the interrogation by Chew did he ask for a meal or complain of hunger pangs.
§
He was medically examined twice and neither medical report made any mention of his having been in a state of collapse or even in a physically weakened state due to hunger and thirst.
o
CoA therefore found that the omission to offer the appellant sustenance in the present case was not so serious and engendering of such grave consequences that the appellant’s will might have been completely overborne.
•
Yeo See How – A was charged with trafficking diamorphine, and alleged that when his statement was being taken, he was (1) feeling cold; (2) was not given medicine for his gastric pain, and (3) was hungry. o
CoA held that "[t]here [was] no necessity… for interrogators to remove all discomfort”, and some discomfort has to be expected in the interrogation process. The issue is whether such discomfort is so great that it causes the making of an involuntary statement
o
Did not find the discomfort on the facts of the case sufficient to raise doubt as to whether the statement was voluntary
o
Also opined that questioning at a fast pace, amounting to cross-examination, could be oppression. §
•
But not so here.
Tan Boon Tat – Prior to having his statement taken, A was: 13
o
Handcuffed & made to squat at the car porch for a long time;
o
Taken to a room where he was handcuffed to the chair;
o
From the time of his arrest at 3.30pm to about 1am the following morning, he was not given any food or drink at all
o
The night before arrest, accused was up gambling the whole night until 7am the next day
o
HC held that while it may have been “inconsiderate” to make A squat in the car porch and to deprive him of food and refreshment, they were not of the opinion that he was in such a state of shock, exhaustion or fatigue that he had no will to resist making any statement which he did not wish to make. §
Furthermore, the doctor who saw him before and after the statement was taken said that the accused was alert and looked normal.
o •
This high threshold was approved of, even on appeal
Kelvin Chai – Although the statements were recorded in the early morning & A had not much time to rest, the court was of the view that there was no sapping of will, such that the accused could not resist making the statements which he would otherwise not have made
•
Evaluation o
HHL also calls bullshit on this, cannot be the case that the court can do anything as long as they pull back before A reaches such a severe ‘state of shock, especially considering the reliability rationale
o
The danger of unreliable confessions or admissions doesn’t arise only at the point of shock, exhaustion or fatigue
• Robust Interrogation •
While it is conceded that robust interrogation is an essential aspect of police investigation, questioning that is too vigorous or prolonged can become oppressive (Seow Choon Meng)
•
It is not incumbent on prosecution to prove that there is no lurking shadow of doubt or that there is only minute vestiges of fear in the mind of the accused before the statement is recorded (Panya Martmontree)
•
Underlying policy is that there has to be a balance between some necessary discomfort/pressure for the sake of efficacy, and ensuring the reliability of statements (Dorcas Quek WHO IS MATTHEW QUEK’S SISTER JFC WHAT IS REAL ANYMORE, The Concept of Voluntariness in the Law of Confessions)
•
Cases
•
Tey Tsun Hang – o
Court held that for a finding of oppression, there was no need for a finding of an overt act from a person in authority like a specific threat inducement or promise
o
Furthermore, even treatment is not oppressive enough to render the statement inadmissible, an insufficiently oppressive statement may nevertheless have some bearing on what weight to attach to the evidence
o
However, on the facts of the case: §
Badgering/pestering is insufficient to constitute oppression, as a suspect who is evasive during interrogation would obviously be pestered by the police officer taking the statement. Furthermore, on the facts of the case, this pestering was not so intense that his mind was sapped
14
§
Court did not believe A’s allegation that the interview room was too cold and too stuffy at the same time, a room could not be stuff if it was cold (WOW WOO BIH LI DID U GO TO LAW SCHOOL FOR THIS)
§
Full body search was also insufficient to constitute oppression
• Other Circumstances •
For cases that involve assault, important considerations include whether the accused had subsequently mentioned to any doctors that he had been assaulted or whether the doctor who examined the accused found any evidence of assault (Panya Martmontree at [35]).
•
Dato Mokhtar – A’s statement was excluded because P failed to prove that it was voluntary. Long hours and odd hours of interrogation. Deprivation of sleep, food and drink. Deprivation of prayer time. Forced to wear only underwear.
•
Panya Martmontree v PP – Accused persons were convicted for committing gang robbery & murder o
Only evidence adduced against them at trial was the statements of A1, A2 and A4, which contained confessions & identifications of their co-accused
o
Argued that the statements were involuntary as all of them were allegedly assaulted & threatened by the officers interrogating them §
A1 claimed that he was assaulted before statement was recorded, and he was assaulted again when he refused to sign in •
§
TJ did not believe this – no injuries were found
A2 claimed he was assaulted until he agreed to admit the murders, and was further assaulted whenever he forgot to say what he had been taught to say •
TJ also did not believe this – evidence was inconsistent and didn’t support a finding of assault
§
A4 claimed that he was threatened unless he narrated a certain version of events •
TJ found his evidence to be contradictory, especially since one of the officers alleged to have assaulted him at the time was away
o
At [29]: Police work in difficult circumstances, if they are required to remove all doubt of influence or fear, the would never be able to achieve anything’
o
At [32]: A only needs to cause reasonable doubt in Prosecution’s case
o
However, it would go too far to submit that the slightest suspicion of ITP or assault is sufficient to render the statement inadmissible
•
PP v Lim Boon Hiong o
Per Steven Chong J at [36], in order for a confession to be rendered inadmissible under, a trial judge need not find, as a matter of fact on the balance of probabilities, that there has been an inducement
o
Its sufficient to raise a reasonable doubt as to the existence of an inducement and/or promise
o
But reasonable =/=merely speculative or conjectural doubt arising from the slightest suspicion of inducement
C. Reasonable for Accused to Suppose •
Subjective inquiry of the Accused
D. Conclusion 15
•
Essentially, its actually pretty hard to prove that someone has their entire will sapped from them o
On previous formulations, A needs to: §
“Be in such a state of shock, exhaustion or fatigue that he had no will to resist making any statement which he did not wish to make” (PP v Tan Boon Tat [1990] 1 SLR(R) 287 (HC), affirmed in Chai Chien Wei Kelvin v PP [1998] 3 SLR(R) 619 (CA)); or
§
Be “in a state of collapse” such that his “will was completely overborne” (Fung Yuk Shing v PP [1993] 2 SLR(R) 771 (CA)); or
§
Have “spoken when he would otherwise not have spoken” (Tey Tsun Hang v PP [2014] 2 SLR 1189 (HC)).
§
However, the person in authority had no obligation to remove all sources of discomfort (Yeo See How v PP [1996] 2 SLR(R) 277 (CA))
•
As the court in Panya Martmontree noted, the police work in difficult circumstances. If they were required to remove all doubt of influence or fear, they would never be able to achieve anything. Therefore, the courts are in a sense justified to hold a high judicial tolerance of tough practices so as to give effect to police efficacy and to deter crime in Singapore.
6. INDEPENDENT GROUND FOR DRUG CASES •
It has been held that the mere fact that A was suffering from drug addiction/withdrawal symptoms when he made the statement does not render the statement involuntary unless A was in a state of near delirium, such that his mind did not go with the statement he was making (Garnam) o
This threshold of a “state of near delirium” was recently affirmed in Tey Tsun Hang. At HC, Woo J cited Garnam – where the maker of the statement is suffering from a medical condition and/or was taking drugs or medication such that he is unable to give his statements voluntarily, the test in such cases is whether A’s mind went with the statement – must be in such a state of delirium that he does not know or understand what he is saying, or appreciate the circumstances in which he made the statements
o
Interestingly, his medical condition was treated as a separate ground altogether – at [124], citing Dahalan, the court seems to indicate: §
There is a high threshold before involuntariness can be found due to a medical condition;
§
There seems to be two steps to the enquiry where medical evidence is relevant: •
Was A diagnosed with a medical condition?
•
If so, what was the effect of this condition on A’s ability to make voluntary statements
§ •
However, HC did not say anything about how this ground interacts with s 258(3)
Possibly an entirely separate ground altogether o
Arguably, a statement made where the suspect’s mind does not go with the statement he is making is involuntary, but s 258(3) is not a test for voluntariness in the sense of a choice being made of a person's free will, as opposed to being made as the result of coercion or duress. Rather, ‘voluntariness’ under s 258(3) is simply shorthand for the highly technical 258(3) test, where stringent requirements must be met before a statement is found to have been involuntarily obtained.
o
Arguably not an oppression case either, since “sapping of the will” suggests that the will of the accused to resist must be overborne or must cease to exist, which is not applicable in this context. 16
o
So why should such a statement be excluded – is this part of the court’s inherent discretion?
• Cases •
Garnam Singh v PP o
Focus was on A’s withdrawal symptoms, and not the interrogators’ conduct
o
Held that withdrawal symptoms operate on statements and render them unreliable because: §
A makes statements in a state of delirium without being fully aware of its implications or contents; or
§
A is in such a state of withdrawal that he would make really any statement because he believes that he will receive some from of relief if he does so
§
On the facts of the case, court found that the effect of the withdrawal was not so severe that A’s mind did not go with the statements he was making
•
PP v Dahalan bin Ladaewa o
A was charged with trafficking, allegedly suffering withdrawal symptoms since his last dose of heroin and erimin was in the morning
o
Significantly, the court found that the present case was one where the statement was recorded at a time when the effect of the withdrawal was at its peak, without making a finding that A was in the state of near-delirium, even though Garnam was cited §
C/f Garnam Singh, where A had been in hospital for five days before the statement was recorded; the window of time would have allowed for the effects of drug withdrawal to abate.
§
In contrast, Rajendran J found that the statements in this case had been recorded on that very morning, when the effects of drug withdrawal were at its peak.
o
Found that A’s mind “did not go with the statements he was making”, which arguably, seems to indicate a less severe standard
•
c/f PP v Ismil bin Kadar [2009] SGHC 84– much lower test → from “state of near delirium” threshold to merely “state of drowsiness or confusion” o
Woo Bih Li J cited Dahalan, where Rajendran J had concluded that A’s mind did not go with the statement he was making, but found that he had stopped short of finding that A was in a state of near delirium (at [23])
o
Therefore suggested that a drug abuser’s mind may not go with his statements even if he was not in a state of near-delirium, but may not be nearly delirious, but he may be in a state of drowsiness or confusion such as to make it unsafe to admit his statement in these circumstances (at [26])
•
Tey Tsun Hang o
A challenged admissibility of his statements made to CPIB officers on the ground that his statements had been recorded while he was suffering from an acute stress disorder, which he was taking medication for
o
2014 HC case, important because it still cites Garnam Singh at [121] – in order for the effects of withdrawal from drugs to affect the drug user's medical and psychological condition to render any statement he makes to be involuntary, he must be in a state of near delirium, that is to say, that his mind did not go with the statements he was making.
17
•
Evaluation o
‘State of near-delirium’ is actually a really high threshold – even if the guy is mildly, delirious, there’s a real risk of unreliability
o
Chinty: What if he was just in a state of “confusion, hallucination, or was just incoherent” – the basis of exclusion should be whether prejudicial value of the evidence really exceeds its probative worth. Shouldn’t it be a matter of degree rather than binary?
7. MISC. SCENARIOS A. Exp 2(A), S 258(3): Deception •
If a statement is otherwise admissible, it will not be rendered inadmissible merely because the statement was obtained by deception (Explanation 2(a) to s 258(3)). o
However, this deception must be in the form of a factual situation, such as that which may be engineered by an agent provocateur, and not a positive misinterpretation of the law (Mazlan at [31])
•
As such, a deception in itself does not amount to an ITP o
E.g. something like we have your fingerprints, your friend gave you up, we have an eye-witness etc.
o
However, something like your wife is in the hospital and if you want to see her before she dies you have to confess is still an ITP. Explanation 2(A) does not cure this.
B. Exp 2(B), S 258(3): Intoxication •
If a statement is otherwise admissible, it will not be rendered inadmissible merely because A was intoxicated (Explanation 2(b) to s 258(3)).
C. Exp 2(D), S 258(3): Not told of Right of Silence (see next chapter) D. Exp 2(E), S 258(3): Procedural Irregularity (see next chapter)
8. S 258(4) CONTINUED OPERATION OF ITP •
There must be continued operation of the ITP when A makes the statement. If the statement was made after the impression caused by any such ITP has been fully removed, the court may find that the ITP has dissipated and is no longer operating (Smith, Naikan). The statement is therefore voluntary & admissible.
• Cases •
In Smith, the statement came one day after the threat. Court held that threat was no longer operating.
•
In Naikan, an interval of two hours between inducement and confession was still sufficient to render the confession involuntary.
9. S 258(5): EVIDENCE AGAINST CO-ACCUSED •
Under s 258(5) of the CPC, when more than one persons are being tried jointly for the same offence, and a confession is made by one of such persons affecting himself & some other of such persons, the 18
court may take into consideration the confession as against the other person as well as against the person who makes the confession o •
Per Explanation 2, ‘offence’ includes the abetment of or attempt to commit the same offence
Elements that have to be satisfied: o
Confession affecting accused and co-accused
o
Jointly Tried
o
Same offence
A. Confessions •
S 258(5) applies only to a confession. o
As per s 258(7), a confession is any statement that suggests the inference that the maker committed that offence.
o
The test for whether a statement is a confession is an objective test of whether to the mind of a reasonable person reading the statement at the time and in the circumstances in which it was made it can be said to amount to a statement that the accused committed the offence or which suggested the inference that he committed the offence (Anandagoda)
o
Statement must be looked at as a whole & it must be considered on its own terms without reference to extrinsic facts (Lord Guest in Anandagoda)
o
If the facts in the statement added together suggest the inference that the accused is guilty of the offence then it is nonetheless a confession even though the accused at the same time protests his innocence (Lord Guest in Anandagoda) §
Essentially à did A admit to elements which constitute the mens rea & actus reus? If yes, it’s a confession
§
An ‘admission’ is the ‘genus’ of which ‘confession’ is the ‘species’ (R v Cooray, cited in Anandagoda)
o •
The statement will be evaluated in the context of the applicable law (Vignes)
A can be convicted solely on the basis of Co-A’s confession, if there is sufficient evidence in the confession to prove Co-A’s guilt BaRD. (Chin Siew Noi) o
The fact that a statement contains exculpatory parts does not deprive it of its effects as a confession so long as the legal elements of the confession are made out unless they negate elements of the confession (Herchun Singh) §
Where they do not, the confession stands despite the exculpatory parts (Herchun Singh).
§
Where they do, the confession would not be made out (Packiam v PP).
• Cases •
Anandagoda – A was charged with the murder of his girlfriend who kept troubling him about marriage. A was interrogated with a view of finding him guilty of murdering his girlfriend by running her over in his car. o
A made various of admissions.
o
At the time in Ceylon, all confessions made to the police were wholly inadmissible. A appealed on the grounds that his statement was a confession and consequently inadmissible
o
PC held that A did not make a confession – he merely made a series of admissions that did not amount to a confession. §
Crucially, he did not make two important admissions: 19
•
That he intended to run over V;
•
That he was the driver of the vehicle.
§
Therefore, the admissions fell short of a confession, and were admissible
§
Per Lord Guest, “the test whether a statement is a confession is an objective one, whether to the mind of a reasonable person reading the statement at the time and in the circumstances in which it was made it can be said to amount to a statement that the accused committed the offence or which suggested the inference that he committed the offence. •
Statement must be looked at as a whole & it must be considered on its own terms without reference to extrinsic facts
•
If the facts in the statement added together suggest the inference that the accused is guilty of the offence then it is nonetheless a confession even though the accused at the same time protests his innocence
•
Sim Cheng Hui – A does not need to admit to the commission of the offence as long as the facts to which he has admitted constitute the offence as a matter of law o o
A made a statement after his arrest by which he admitted to the possession of drugs In CoA, Yong CJ held that the statement had clearly implicated A §
Even though he did not expressly admit to the offence of drug trafficking, the fact that he was found in possession of such a large amount of drugs must allow the inference to be drawn that he was trafficking these drugs.
§
Particularly, A did not say that the drugs were for his own consumption, so it could be inferred taking into account all circumstances of the case that he possessed the drugs for the sole purpose of trafficking them
•
Vignes s/o Mourthi – Although the Anandagoda test requires the court to ignore extrinsic facts, the court may view the statement in light of the applicable law, e.g. statutory presumption of trafficking o
A made statements that the substance in the bag that he was carrying was ‘kallu’, and the issue was whether the statement constituted a confession of the offence of drug trafficking.
o
On appeal, A argued that he thought that he was carrying innocuous prayer stones (sambrani kallu) rather than drugs
o
CoA held that for a statement to amount to a confession, it need not be of an unqualified nature, it only needs to connect A to the offence in some way §
On the facts of the case, it was clear from the statements that he delivered the bag of drugs to Sgt Rajkumar, who he thought was Thair
§
While the Anandagoda test requires the court to ignore extrinsic facts when determining whether a statement amounts to a confession, it does not mean that it should not be viewed in light of the applicable law, such as presumptions contained in the MDA. A statement should still be viewed within the framework of the law.
§
By virtue of the MDA, A is presumed to have known the nature of the substance that he was carrying, notwithstanding his protestation to the contrary
o
Accordingly, his statements clearly came within the scope of “stating or suggesting the inference that [A] committed that offence” laid down in s 17(2) of the Evidence Act, and were confessions
20
• Mixed Statements – Exculpatory & Inculpatory •
Both inculpatory & exculpatory parts of a mixed statement have to be treated as evidence of the case, so that the true facts of the case can be determined – it is then up to the court to decide which parts of the statements they intend to treat as true and rely on (Chan Kin Choi)
•
Although the judge as the arbiter of facts is free to decide which parts of the statement it choose to believe on a consideration of the whole of the evidence before him, it has been held that the incriminating/inculpatory parts are more likely to be true, while the exculpatory/excuses may not carry the same weight
•
Cases
•
Chan Kin Choi o
A was convicted of murder. In his statement, he alleged that he had stabbed V after V had assaulted him, and argued that the exculpatory facts (that V had assaulted him) amounted to substantive evidence which the court should accept as true
o
TJ disagreed, and found that the exculpatory statements were self-serving, and therefore could not be regarded as evidence of their truth
o
Issues §
[1] Whether explanations which A gave in his statement to the police must be accepted as true;
§
[2] What evidential status should be given to such mixed statements containing both inculpatory & exculpatory material?
o
On [1]: It is not the law in SG that an exculpatory statement in a confession used by the Prosecution as part of its evidence is also admissible as evidence §
Or else the moment Prosecution puts in a confession for murder, they are also bound to accept A’s explanations, thereby defeating the purpose of using the confession
o
On [2], citing in approval R v Sharp, where a mixed statement is under consideration by the jury in a case where Df has not given evidence, the simplest method and therefore the method most likely to produce just results, is for the jury to be told the whole statement, both the incriminating parts & the excuses/explanations, which will both be considered in deciding where the truth lies §
Where appropriate, the judge may, and should, point out that the incriminating parts are likely to be true (hence why they are admitted by Prosecution), while the excuses won’t have the same weight
•
Tang Tuck Wah o
A was charged with corruption under the PCA, and gave a mixed statement (contained both exculpatory & inculpatory statements)
o
HC applied the approach from Sharp, which was endorsed locally in Chan Kin §
The principle enunciated was that in dealing with a “mixed statement”, both the incriminating parts and the excuses & explanations must be considered in determining where the truth lies •
However, it must be borne in mind that the incriminating parts are likely to be true (reliability rationale), whereas the excuses (covering your ass) do not carry the same weight
§
Therefore, TJ was entitled, as the arbiter of facts, to consider the whole of the evidence before him, and treat the inculpatory parts as containing matters of truth, 21
and to reject explanations he gave favourable to himself based on the understanding that A is less likely to state things against his interest than things in his favour
B. Jointly Tried •
S 285(5) only applies where 2 or more persons are jointly being tried. By definition, it is not applicable if the persons were tried separately, or where only one of them is charged. o
This gives A the opportunity to xx his Co-A’s version of events as contained in his confession, thereby ensuring the reliability of Co-A’s confession
C. For the Same Offence •
S 285(5) only applies when 2 or more persons are jointly tried for the same offence. o
Per the Explanation, offence as used in this section includes the abetment of or attempt to commit the offence.
• Cases •
PP v Kamal bin Kupli o
Accused persons were charged with common intention to commit murder, and made statements while they were under investigation for robbing V
o
HC (Kan J) held that A1 & A3 knew that they were under investigation for offence of murder when they made the statements.
o
Secondly, even of they were only under investigation for robbery, as long as they made statements that amounted to confessions and can be construed as confessions to murder under the Anandagoda test, the statements will be treated as confessions. §
Confession just has to cover AR + MR of the offence
D. Affects Both Persons •
Section 258(5) only applies to a confession made by A which affects himself and B, his co-accused. o
•
Illustration (a): A says: B and I murdered C.
The requirement for affecting both persons ensures the reliability of the statement since it is in the interest of the co-accused to confess to the crime that implicates himself. This therefore cloaks the statement with an air of prima facie reliability
E. Weight
–
Is
it
possible
to
convict
solely
on
Co-Accused’s
Confession? •
Previous case law has suggested that a confession by Co-A is insufficient on its own to justify a conviction of A since the statutory language only prescribed that Co-A’s confession should be “taken into consideration (Sim Ah Cheoh, Ramachandran)
•
However, Chin Siew Noi suggests that it is in fact possible for the conviction of an accused person to be sustained solely on the basis of a confession by his Co-A, provided that the evidence emanating from the confession satisfies the court BaRD of A’s guilt o
However, in the CoA decision of Lee Chez Kee, CSN was doubted on the ground that it is out of the ordinary for a Co-A’s confession to be attributed so much weight to the extent of it being able to secure a conviction on its own 22
o
This is especially so since the effect of s 30 (now s 258(5)) was to avoid a situation in a joint trial where only one Co-A has confessed, and the court has to perform the intellectually difficult task of excluding this evidence against the other Co-A §
As such, ‘take into consideration’ should be read as admissibility for pragmatic reasons, and not for reasons of reliability
•
NEW CASE
• CASES •
Sim Ah Cheoh (Per LP Thean J at 157): o
This section is in pari materia with s. 30 of the Indian EA
o
It has been decided in a series of Indian cases that a confession of an accused implicating himself and his co-accused may be taken into consideration along with other evidence and a conviction based only on such confession cannot stand
o
Cited Bhuboni Sahu per Sir John Beaumont: §
S 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as against himself.
§
But a confession of a co-accused is obviously evidence of a very weak type. •
Does not come within the definition of ‘evidence’ contained in s 3, Evidence Act.
•
It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination.
§
S 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. •
The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence.
•
Per the view which has prevailed in most of the High Courts in India, Co-A’s confession can be used only in support of other evidence and cannot be made the foundation of a conviction
•
Ramachandran o
“On the basis of the decided authorities, it is abundantly clear that the confession of a coaccused can only play supportive role in a criminal prosecution. It cannot by itself form the basis of a conviction.”
•
Chin Siew Noi o
A1 charged with abetment of murder by conspiracy, A2 and A3 charged with murder in furtherance of common intention;
o
§
A2 and A3 made statements that incriminated A1 (that A1 told them to “get rid of” V)
§
All three Dfs remained silent at trial and were convicted
On appeal, A1 argued that applying the construction of s 30 established by Bhuboni Sahu and Kashmira Singh (accepted in Sim Ah Cheoh), the independent evidence (i.e. excluding the A2and A3’s statements) was insufficient to establish the essential elements of the charge of abetment by conspiracy of murder
o
At CoA, Yong CJ held that the Indian approach should not be followed:
23
§
A definitive decision on the scope of s 30 was unnecessary in Sim Ah Cheoh because, in that case, it was not necessary to rely on Co-A’s statements to sustain a conviction.
§
However, what must be recognized about the Indian authorities is that they were decided strictly within the confines of the Indian Evidence Act •
Not enough to say that s 30 in their Act is word for word the same as our s 30 as the Indian EA is a different creature altogether from ours. Many of its provisions are influenced by the socio-political considerations as well as the legal jurisprudence prevailing in India at the time the Act was drafted.
•
Consequently, the construction they gave to their s 30 was shaped by the perceived need to ensure the consistency of that section with the whole body of the Indian law of evidence.
§
Scope of admissible evidence as provided for in our EA is considerably broader than that provided for in the Indian equivalent. •
C/f India, Confessions by Co-As may be included in the whole body of what is understood to be ‘evidence’ within the parameters set by our Evidence Act.
•
This is another reason why this court is of the view that the interpretation of s 30 established by such cases as Bhuboni Sahu could no longer be simplistically accepted as being the authoritative interpretation of our s
•
The judgments in these Indian cases are replete with statements to the effect that s 30 should be construed narrowly because the confession of a co-accused cannot be fitted within the restricted definition of evidence given in s 3 of the Indian Evidence Act o
o
Also, there is no Indian equivalent of s 122(5).
The approach that should be taken in Singapore: §
The plain and literal meaning of s 30, read together with illustration (a), is that the confession of a co-accused may be made part of the substantive evidence against the accused in the same manner it forms part of the evidence against the confessing co-accused.
§
It is trite that an accused person may be convicted solely on the basis of his confession. •
Additionally, there is nothing in the section or in the Act itself pointing to the conclusion that there must exist ‘independent’ evidence against A before the confession of his Co-A can be used against him.
§
The natural interpretation of s 30 is that it allows the conviction of an accused person to be sustained solely on the basis of a confession by his co-accused, provided, of course, that the evidence emanating from that confession satisfies the court beyond reasonable doubt of the accused’s guilt. •
o
A narrower construction would emasculate s 30.
In response to the argument that Co-A’s confession may not be very reliable evidence against A because Co-A may well try to shift most of the blame on to A, Yon CJ pointed out that ultimately, the assessment of the weight to be accorded to the confession lies with the court. §
Confident that our courts, in assessing the evidentiary value of a Co-A’s confession against A, will take into careful consideration the incentive that the co-accused might have to lie.
•
Lee Chez Kee at [113]:
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o
Acknowledged that this court has, in a series of cases since Chin Seow Noi ruled that a conviction may be founded entirely on the confession of a co-accused alone under s 30 of the EA.
o
However, considering the law’s seeming concern with the unreliability of a co-accused’s confession in situations apart from s 30 (to the extent of making such confessions inadmissible against another accused), it does seem a bit out of the ordinary for a coaccused’s confession admitted under s 30 to be attributed so much weight to the extent of it being able to secure a conviction on its own. §
•
Opined that the need to reconsider this decision may come in the future.
Norasharee bin Gous o
3As convicted in HC for various charges under the MDA – imposed mandatory death penalty on A2 & A3 as neither received a certificate of substantive assistance under s 33B of the MDA §
A2’s (Norasharee’s) appeal involves the issue of P’s reliance on confessions of Co-A to prove its case against another co-A.
§
Accused A1 of trying to falsely implicate him because: •
(1) A1 wanted to save himself from the death penalty by receiving a certificate of substantial assistance;
• o
(2) They belonged to rival gangs, and A1 allegedly wanted to get rid of A2
CoA cited in approval Chin Seow Noi at [59]: CSN correct in so far as it stands for theprinciple that X may be convicted solely on Y’s testimony. §
However, the foregoing discussion shows that Y’s confession has to be very compelling such that it can on its own satisfy the court of X’s guilt beyond a reasonable doubt.
§
In this regard, it would be relevant to consider the state of mind and the incentive that Y might have in giving evidence against X. •
If X alleges that Y has a motive to frame him, then this must be proved as a fact (see Judgment at [28], citing Khoo Kwoon Hain)
•
Depending on the facts of the case, Y may well be truthful despite having an incentive to lie or could be untruthful despite not having such an incentive.
§
On facts of the case, A1 was available for xx, and his testimony was found to be internally and externally considered •
At [68], CoA acknowledged the incentive A1 had to manufacture claims against the A2 and A3 to secure himself a certificate of substantial assistance under s 33B of the MDA
•
However, on a holistic examination of the facts, A1’s evidence was clear and consistent enough to support a conviction
§
Also took into account that A2 gave evidence that was internally inconsistent, and had a particular interest in discrediting A1 because his statements were highly adverse to A2 because if accepted to be true, would prove the entirety of A2’s offence •
A2 was also facing a death sentence
• Evaluation •
(Per Micahel Hor) o
Even though A may indeed testify, but the contest is not even §
The testifying accused can be cross-examined but not his accuser
§
Even so, what does the court have but two contradictory stories 25
§
The strict application of the principle that guilt must be proven beyond reasonable doubt should result in an acquittal
o
The question is not whether there have been any miscarriages of justice – The question is whether custodial incrimination of a non-testifying co-accused can ever be, of itself, enough.
•
Evaluation:
•
AGC and Police are strongly in favour of Chin Seow Noi. o
Particularly useful in dealing with drug or other crime syndicates and obtaining multiple convictions from one confession
o
But could spell the death-knell for defence lawyers à Ultimately, can we trust our judges’ wisdom to know where the truth lies? §
See pp. 159 of Chin Seow Noi
§
“Some may voice the fear that a co-accused’s confession may not be very reliable evidence… we would point out, however, that ultimately the assessment of the weight to be accorded to a … We are confident that our courts, in assessing the evidentiary value of a co-accused’s confession against the accused, will take into careful consideration the incentive that the accused might have to lie”
•
In the recent case of Norasharee, CoA’s meticulous consideration of the facts surrounding Yazid’s statements illustrates the caution courts should take in convicting A based only on the statement of a Co-A o
Case also highlights that in any such analysis, the real risk that a co-accused may falsely incriminate someone else to increase his chance of acquittal or minimize his role in the crime should be kept in mind.
o
Such considerations are arguably more pertinent in cases for charges under the MDA such as Norasharee where a co-accused may make incriminating statements in order to obtain a certificate of substantial assistance under s 33B of the MDA and avoid the death penalty.
10. S 258(6)(C): CONFIRMATION BY SUBSEQUENT FACTS •
Even if a statement is found to be involuntary, it will nonetheless be admissible if it is subsequently confirmed by a discovery of a fact to the extent that it is confirmed by the discovery of information which confirms its truth under s 258(6)(c) (Chin Moi Moi).
•
This is because such statements are reliable to the extent that they are confirmed by the discovery of information which confirms its truth
•
Suppose A has murdered someone and buried him. Police question him. After some oppressive interrogation, A leads the police to some place and points to a place where he buried the bodies and tells them that the knives are in his roof. Because of the oppression any confession he made may be inadmissible. But there are certain facts discovered: o
Bodies discovered
o
Knives found in his roof; forensic pathologist finds out that the knives were used to murder the victims
•
It cannot be admitted into evidence that he said that “these are the knives with which I stabbed the deceased”; But PP can say that they found these knives as a result of information obtained from the Df.
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• Cases •
Chin Moi Moi
•
A was charged with the theft of a gold bangle. Her statement to the police was struck out as inadmissible in a voir dire because it was involuntary
•
However, P sought to adduce the part of the statement where A told investigators where the bangle was
•
Yong CJ held: o
Summary §
(1) Pre-condition for invoking s 27 (s 258(6)(c)): Essential to prove that a fact was discovered in consequence of information received from the accused.
§
(2) 'Information' may be a statement by accused, acts or conduct of accused relating distinctly to fact discovered, eg, pointing out a place or leading police to article or place.
§
(3) 'Fact discovered' is not the object produced; but the place from which object is produced and knowledge of accused as to this: Pulukuri Kottaya
§
(4) Only so much of an inadmissible confession that is confirmed by the discovery, can be admitted in evidence.
o
In detail:
o
Locus classicus is the advice of the Privy Council in Pulukuri Kottaya: §
S 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved.
§
The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. •
The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly, can be safely allowed to be given in evidence;
•
However, the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate.
§
It was argued by the Crown in that case that ‘the fact discovered’ is the physical object produced, and that any information which relates distinctly to that object is admissible. This proposition was rejected: •
‘The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact.
•
Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago.
•
It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been 27
used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’ these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant’ o
S 27 is clearly not a backdoor avenue for the admission of statements made by an accused person to the police §
[1] Must be be proven first that the discovery of the fact only resulted from the information received from the accused •
On the facts of the case, P clearly made out the factual assertion that it was only in consequence of A’s statement that the IO proceeded to the area outside the flat to search for the bangle.
§
[2] The portion of the involuntary statement that may be admitted under s. 27 is as follows: •
‘Without much hesitation, I throw down [sic] the gold bangle out of kitchen window’”
•
C/f Lam Chi-Ming v R– PC, on appeal from HK o
3 As were charged with murder, and P argued that they had stabbed and killed V before throwing the knife into the sea
o
TJ refused to admit these oral & written statements on the grounds that prosecution failed to prove voluntariness BaRD §
However, TJ admitted a video showing A directing the police to the water front and gesturing the throwing of a knife into the water, as well as police evidence of the recovery of the knife at that location
o
Per Lord Griffiths – evidence with regard to the conduct of the Dfs leading to the recovery of the murder weapon was part of their confessions to the police §
Even though the evidence was shown to be reliable by the discovery of the knife, since P had failed to prove the confessions were voluntary, the whole of the evidence relating thereto was inadmissible
§
The rejection of an improperly obtained confession is not dependent only upon possible reliability, but also on the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilized society to proper behaviour by the police towards those in their custody
o
Held that court below erred in focusing only on the reliability of the confession when admitting such statements §
“It is surely just as reprehensible to use improper means to force a man to give information that reveals he has knowledge that will ensure his confession, as it is to force him to make a full confession”
§
Privilege against self-incrimination is deeply rooted in English law, and it would make a grave inroad upon it if police were to believe that they can improperly extract admissions as long as they can subsequently prove them to be true, for the purpose of obtaining a confession •
“It is better by far to allow a few guilty men to escape conviction than to compromise the standards of a free society.”
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• However, the new s 258(6)(c), as compared to the old s 27 has two material changes •
Addition of the phrase ‘whether such information amounts to a confession or not’, which means that information under s 258(6)(c) of the CPC now does not only apply to statements, but also necessarily encompasses acts or conduct of the accused which relate distinctly to the fact discovered (Chin Moi Moi at [30]). This would include pointing out the place where an article is hidden or where the accused leads the police to the article.
•
Addition of the word ‘thing’ so that the provision reads ‘any fact or thing… discovered’, as opposed to ‘any fact… discovered’ o
Arguably, this means that under Pulukuri Kottaya, the knife itself is admissible, and any information related directly to the knife (blood, fingerprints etc.) is admissible as well.
11. WEIGHT OF CONFESSION – DISCUSS IF ITS ADMITTED •
Even though evidence Z is admissible, the weight of an admission is a matter for the court and is dependent on all the circumstances of the case, including A’s knowledge of the facts or matters relating to that confession, and whether he has an ulterior motive in admitting his guilt.
A. What is the confession trying to prove? •
In Lim Boon Keong, the court found that before A’s admission as to the nature of a substance can be of evidential value, it must be shown that the A has sufficient knowledge of or familiarity with the substance which he claims to identify. o
On the facts, the A’s confession that “he admits to the guilt and hope for a lighter sentence” wss insufficient to prove BRD that he had knowledge and familiarity with norketamine.
B. Where confession has been retracted •
Since X has retracted his confession, this issue is how much weight should be allocated to his confession o
The mere fact of retraction does NOT render confession inadmissible, although its WEIGHT may be affected depending on the circumstances (Pinsler, Evidence and the Litigation Process). However the starting point that such confessions should be subject of special care (Kadar)
•
A can be convicted solely on his confession even though that statement is subsequently retracted (Lim Thian Lai)
•
A can be convicted even on the weight of a retracted testimony by Co-A (Panya Martmontree) o
HOWEVER, the court must still be satisfied that the confession remains voluntary, true and reliable
•
To this end, much also depends on whether a reasonable and reliable explanation can be furnished for the retraction (Kadar). o
At [75]: Courts should exercise particular caution when relying on uncorroborated confessions that have for good reason(s) been withdrawn by their makers. [75]
• Cases •
Muhammad bin Kadar v PP o
A1 & A2 were charged with murder
29
o
During interrogations, A1 initially denied knowledge of offence, but subsequently confessed to killing V alone
o
A2 confessed that they were both at the scene of crime, but A1 killed V and A2 only assisted with robbery §
However, before trial began, A2 filed a notice of alibi stating that he was home at the time of the killing – contradicted his statements
§
However, at trial – A2’s evidence was that he was responsible for both the robbery and the killing, and A1 was not present
o
Per Rajah JA at CoA: just like any other form of evidence, the truth of the contents of statements admitted is to be evaluated on the ongoing basis throughout the trial §
This should be done so regardless of whether its truth is disputed by its maker, but especially if it is so disputed
§
Court does so with reference to its standard set of tools – examination of internal consistency, corroborating evidence, contradictory evidence, evaluation of credibility of witnesses etc.
o
But confessions admitted into evidence that are partly or wholly retracted by maker should subject to special care §
Lim Thian Lai – A can be convicted solely on own testimony, even if it was retracted
§
Panya Martmontree – A can be convicted even on the weight of a retracted testimony by Co-A
§
Hence the fact that a witness who is an accomplice withdraws his statement does not, ipso facto, render it of little evidential weight
o
However, both LTL and PM have cautioned that evidential weight assigned to a retracted statement should be assiduously & scrupulously assessed by the courts §
So in a case like LTL where its your only evidence, it must really hold up to the fact that its voluntary, true & reliable •
Not even sufficient in such cases to show voluntariness BaRD – there is a conjunctive requirement of objective reliability
o
Crucially, CoA held that it would not be productive or meaningful to treat retracted statements as a separate class of evidence – should just be treated as an instance of inconsistency in the witness’ testimony §
Therefore the weight assigned to such statements and the assessment of such a witness’ credibility falls to be determined by the general corpus of case law relating to inconsistencies, discrepancies, and falsehoods in a witness’ statement
§
Therefore whether the witness’ subsequent retraction should be allowed to cast doubt on her credibility & the veracity of her statement depends on whether a reasonable & reliable explanation can be furnished for that retracted
C. Inculpatory + Exculpatory Statements – see above •
[1] General rule is that s 258(3) does not distinguish between inculpatory and exculpatory statements, and just refers to statements. o
Therefore, the entirety of the statement should be admissible if it satisfies the voluntariness test.
o
However, the starting point should always be that the accused is less likely to state things that are against his interest hence such statements must be treated with caution. 30
•
[2] This is because there should be nothing to prevent a court from accepting the truth of exculpatory statements if, in all the circumstances, they are shown to be reliable.
•
[3] Ultimately once both the exculpatory and inculpatory parts are treated as evidence, it is the duty of the court to decide which parts of the statement it intends to rely on (Chan Kin Choi) o
This means that the judge as a decider of facts is thus entitled, on a consideration of the whole of the evidence before him, to treat the inculpatory parts of the accused’s statement as containing matters of truth, and to reject his explanations he gave favourable to himself (Tang Tuck Wah v PP)
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