RASI mugs.pdf

Right against self incrimination 1.

SILENCE WHEN QUESTIONED BY NON-POLICE

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An issue arises as to whether an adverse inference may be drawn from X’s silence in the face of Y’s accusation

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Under the common law, A has the right of silence because no man is bound to accuse himself. This common law right is preserved under s 261(2)(b) of the CPC (Tan Khee Koon)

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However, an adverse inference may be drawn from A’s silence if he was confronted with an accusation made by a person speaking on equal terms, and an answer could be reasonably expected (Parkes, followed in Tan Khee Koon) o

Based on the rationale that a person on equal terms will not have the power to compel A to speak, hence the policy regarding abuse of state power is not applicable.

o

Hence, if A is asked by a passer-by whether he had committed the crime, he is reasonably expected to defend himself against the accusation, and his failure to answer could be evidence of guilt.

o

Conversely, the accused’s silence would NOT be evidence against him if the question was asked by a person in authority over him.

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Therefore the issue is whether X & Y are on equal terms o

Alternatively: On the facts of the case, even though X & Y are on equal/non-equal terms, it was reasonable/unreasonable to expect an answer because…

• Cases •

Parkes o

A allegedly killed W1’s daughter

o

W1 testified she found daughter seriously injured with stab wounds, she confronted Df, a neighbour in same compound, and said, "what she do you – why you stab her?" §

W1 repeated the question, but A refused to answer and tried to stab her when she threatened to detain him till the police arrived

o

At trial, A alleged that he didn’t reply because he didn’t know what W1 was talking about

o

At PC, Lord Diplock cited R v Micthell, and held that this was a case where "a charge is made against a person in that person's presence… (and it was) reasonable to expect that he will immediately deny it, and that the absence of such a denial is some evidence of an admission on the part of the person charged, and of the truth of the charge.” §

Undoubtedly, when persons are speaking on even terms, and a charge is made, and the person charged says nothing, and expresses no indignation, and does nothing to repel the charge, that is some evidence to show that he admits the charge to be true."

1

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Tan Khee Koon o

A was a police officer who accepted bribes from a company director who was under investigation for criminal breach of trust; §

When the company director was arrested, he made accusations that he had paid A bribes; A remained silent

§ o

At trial, P relied on A’s silence upon being confronted by the director

At CoA, Yong CJ held that: §

All that s 123(3) does is to leave the position as it stands at common law, where the effect of silence is dependent upon the status of the accuser with respect to the accused (citing the position in Parkes) •

It is only if the relationship is equal that the silence may be taken as evidence of the allegation.

•

On the facts, as the complainant was not superior to the appellant, and was actually in an inferior position, the inference from silence was possibly that the allegations were true.

§

However, such inferences are very much dependent on the circumstances. •

In this case, the judge was satisfied that such an inference could be drawn. This court is content to leave it at that.

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R v Chandler o

It was held that context determines relative equality of status between accused and police. §

There, the police interviewer and the accused were speaking on even terms because the accused was in the presence of his solicitors.

§

E.g. a young detective questioning a local dignitary in an inquiry into alleged local government corruption may be very much at a disadvantage.

• Evaluation •

HHL argues that the common law position is illogical because it is equally plausible that A might think that the other person has no right to accuse him or that he should not be compelled to reply the accuser. o

Conversely, if a person in authority accuses a party of a crime, there would then be greater reason for the accused to protest his innocence by replying.

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CTY argues that the common law test is unsound because “even terms” is too imprecise a term to rely on – rather, the focus should be on the words “where an answer could be reasonably expected” (s 261(1) of CPC). o

The question to ask is under what exceptional circumstances can one reasonably expect a person to answer such that a failure to respond equates to an admission of guilt §

As such, a question being asked by a person on “even terms” is merely just one possible circumstance where one can reasonably expect a response, but is not determinative as a general rule.

§

Another possible example where it is reasonable to expect an answer could be when A was accompanied by counsel

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A. Admission of Circumstances/Conduct for Implied Admissions (S 8(2)) •

S 8(2) of the EA arguably renders conduct of A admissible if “such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.” o

Illustrations

o

(f) The question is whether A robbed B. The facts that after B was robbed, C said in A’s presence: “The police are coming to look for the man who robbed B”, and that immediately afterwards A ran away are relevant.

o

(g) The question is whether A owes B $10,000. The facts that A asked C to lend him money, and that D said to C in A’s presence and hearing: “I advise you not to trust A for he owes B $10,000”, and that A went away without making any answer, are relevant facts.

o

(h) The question is whether A committed a crime. The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal, and the contents of the letter, are relevant.

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However, HHL cautions against this: EA illustration (g) is not about ROS, is not about commission of a crime. Special context of being questioned by police officer means CPC should apply and not s 8(2) o

But if it’s a case where its not a police questioning X and X’s conduct does not necessarily constitute silence, it may be permissible under Illustration (g).

B. Presumption of Fact under s 116 •

Under s 116, the court is allowed to presume that “if a man refuses to answer a question which he is not compelled to answer by law, the answer if given would be unfavourable to him” (s 116 illustration (h) of EA).

2. SILENCE WHEN QUESTIONED BY THE POLICE BEFORE CHARGE – S 22, 261(1) OF CPC A. If it is a Pre-S 23 Long Statement •

An issue arises as to whether an adverse inference (AI) may be drawn from X’s failure to mention his defence in his long statement made prior to a S 23 cautioned statement o

Generally speaking, no AI may be drawn from A’s silence in a long statement because he has a right against self-incrimination under s 22(2) of the CPC (Kwek Seow Hock) §

S 22(2) states that A need not say anything that may expose him to a criminal charge, penalty or forfeiture

§

This makes sense because the suspect & the police are not on even terms

§

However, the right is weak in two respects: •

[1] He risks incurring evidential disadvantage at trial if he exercises this right (under s 261(1); o

Power to draw an adverse inference is conferred by s 261(1), and is expressly confined to the situation where A fails to mention a matter relevant to his defence “on being charged with an

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offence, or informed by a police officer… that he may be prosecuted for an offence” • •

[2] Police do not have to inform him that he has this right (Mazlan)

A failure to explain to A that he has the right to remain silent pursuant to s 22(2) does not render the statement inadmissible, and is not a breach of his constitutional rights under Art 9(1) of the Singapore Constitution (Mazlan).

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S 261(1) of the CPC arguably allows the drawing of adverse inferences if A fails to mention a material fact of his defence, which he could reasonably have been expected to mention when “questioned, charged or informed”.

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An adverse inference will be drawn only if he fails to mention facts which he could reasonably have been expected to mention upon being charged. (Terence Yap)

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Per Kwek, this also encompasses s 22 statements made after the s 23 warning has been given. o

This is justified because A would have been warned of the consequences of not mentioning material facts when his s 23 statement was taken.

• Yes, AI Should be Drawn •

Under s 261(1), it is arguable that the court is allowed to draw an AI if A fails to mention a matter relevant to his defence which he could reasonably have been expected to mention when “questioned, charged or informed” o

It is unclear whether ‘questioned’ in s 261(1) includes s 22 long statements.

o

In Kwek Seow Hock, CoA affirmed TJ’s decision, albeit without the use of the adverse inference, and stated that it is entitled to disbelieve exculpatory statement that he had the drugs in his possession for his own consumption because he had failed to mention such a defence in his s 22 statements. §

At [18]-[19]: Since A has a PASI under s 22, no adverse inference in general may be drawn against him for failing to state any fact or circumstance which may incriminate him in any way. •

However, if the fact or circumstance withheld would exculpate A from an offence, a court may justifiably infer that it is an afterthought and untrue, unless the court is persuaded that there are good reasons for the omission to mention the exculpatory fact or circumstance

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Therefore, on application of the narrow Kwek rule (AI for exculpatory facts, but not inculpatory facts withheld), the court may justifiably infer that (defence/exculpatory fact) is an afterthought and untrue since X had no good reason for withholding the fact when giving his s 22 statement. o

Possible good reasons? §

See Below

§

Intellectual capacity/state of mind – I’m not a lawyer, how would I have known its exculpatory?

§

Some defences, such as sudden fight or diminished responsibility are both inculpatory & exculpatory at the same time •

KSH acknowledges that if a disclosure may expose A to a criminal charge, it should attract privilege – the conundrum here is that the fact that A had intended for half the diamorphine to be for his own personal consumption is inculpatory towards the offence of consumption, but exculpatory towards the offence of trafficking à still not protected by privilege

o

Not a good reason 4

§

Was not informed of his s 22(2) RASI •

Per Mazlan, the court was clear that under s 22 of the CPC, the police’s failure to inform a suspect who they question under s 22 of their s 22 rights does not render his statement inadmissible at trial

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Extra Evaluation: Law used to be different – before the 1976 amendments, r 3 of Sched E prohibited the questioning of persons in custody without first giving them the standard caution set out in r 5. §

However, despite the Law Society’s best efforts to call for the introduction of a legal requirement that the police inform the suspect whom they wish to question under s 22 of his privilege against self-incrimination back in 2009, Parliament was content with the law as it stood

§

Wanted to consult lawyer (Terence Yap) •

Also in Lim Benny – explanation that his brother told him he would engage a lawyer and therefore A did not think it was important to mention the bag contained counterfeit money was not accepted

Cases Kwek Seow Hock v PP [2011] 3 SLR 157 Facts

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A was arrested by CNB officers with 46 packets of diamorphine – contained 25.91g o

Under s 17 of the MDA, presumption that A had the packets in his possession for the purposes of trafficking

o

In the long statements recorded pursuant to s 22 of the CPC, A stated that all the drugs were for sale and that he had been instructed to deliver the packets and $6,650 in cash to someone at Hougang

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At trial, A claimed that he had intended to retain half of the packets for his own consumption o

This would reduced the quantity of diamorphine trafficked to be under the 15g threshold for capital punishment

o

However, he failed to mention the defence of consumption in both his long statements, as well as his cautioned statement recorded pursuant to s 23 of the CPC

/held/

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Under s 23 of the CPC, a person when charged with an offence or officially informed that he may be prosecuted for an offence, has to be served with a notice informing him that if he holds back any fact that he intends to rely on in his defence till he goes to court, his evidence may be less likely to be believed (at [13]) o

Basis for court to draw adverse inferences from a failure to mention material facts when subjected to this caution can be found is s 261 of the CPC

o

On the facts of the case, A omitted to mention the defence of consumption in his cautioned statement §

TJ cited Lim Lye Huat Benny – there could be a plausible explanation for A’s failure to mention his defence in his s 23 statement. It was early in the morning, and he probably did not have any rest or food at the time the statement was 5

recorded. Additionally, he was probably feeling unwell due to his craving for heroin and his consequent withdrawal symptoms. §

In Lim Benny, court accepted A’s contention that no adverse inference should be drawn against him with respect to his cautioned statement as it had been recorded at an unearthly time when he had been too tired & hungry to think of his defence

§

However, in this case, TJ did draw AI à found that at the time where A was giving his s 22 statement, it should have been apparent that it would be important to state material aspects of his defence, such as that half of the packets were for his own consumption •

Rejected explanation that A was suffering from “inner restlessness and that his mental faculties were still affected at the time his statement was recorded”à not his first time being charged with drug trafficking, and should have known that the fact that he intended to keep half of the drugs for consumption would be an important factor in his defence to a drug trafficking charge

•

Two more opportunities to mention defence when further statements recorded à did not do so

§

Similar to the adverse inference drawn with reference to A’s failure to mention his belief that he was carrying counterfeit money in Lim Benny – explanation that his brother told him he would engage a lawyer and therefore A did not think it was important to mention the bag contained counterfeit money was not accepted

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At [17]: Court not always entitled to draw AI from failure to disclose material fact in a s 22 long statement o

Because s 22 allows A to withhold mentioned any fact or circumstance that, if disclosed, may incriminate him, A is “bound to state truly the facts and circumstances with which he is acquainted concerning the case”, except that he may decline to state any fact or circumstance which would incriminate him in any way (at [18]) §

Therefore no adverse inference, in general, may be drawn against him for failing to state any fact or circumstance which may incriminate him in any way

o

However, if the fact or circumstance withheld will exculpate A from an offence the court may justifiably infer that it is an afterthought and untrue, unless the court is persuaded that there are good reasons for the omission to mention that exculpatory fact or circumstance (at [19]) à in fact, you have no right to withhold the disclosure of these facts under s 22(2)***, this doesn’t mean you have a right to draw AI, but that’s the basis of his argument §

Accords with common sense à if A believes he is not guilty of an offence that he might be charged with, he would be expected to disclose why he has such a belief

§

In this case, for a self-confessed trafficker like A, consumption would be an exculpatory fact, and more credible if disclosed to an investigating officer at the earliest opportunity after arrest

§

A claims he did not do so as he thought it would be of no use à rejected by Judge 6

o

However, even if court did not draw AI against him for omitting to mention this material fact earlier à court is entitled to disbelieve his evidence as not being credible in circumstances

PP v Mazlan bin Maidun [1992] 3 SLR(R) 968 à no duty to inform A of privilege Facts

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As were charged with murder

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During trial, TJ ruled that A1’s statements to the police under s 121 of the CPC (now s 22) pf the CPC were inadmissible o

Statements were made in Malay

o

Before each statement, interpreter informed him that he was bound to state truly the facts & circumstances of the case, but not that he was entitled to refrain from stating anything which may expose him to a criminal charge

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TJ refused to admit statement on Art 9(1) of the Constitution, which provides that no person shall be deprived of life or liberty, save according to the law on the basis that ‘the law’ also encompasses the right of silence as a rule of natural justice, and s 22 must be construed so as to give effect to that right o

Further, this also means that a person questioned under this section must have a corresponding right to be told that he had a right of silence

o

Therefore a s 22 statement must not only satisfy the voluntariness test, but must also satisfy the conditions read into s 22– so a warning must be administered whenever a statement is taken pursuant to s 22

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AG certified 3 points of law for the CoA to consider: o

[1] Must A be expressly informed of her right to remain silent whenever a statement was recorded from her pursuant to s 22?

o

[2] Does a failure to inform her breach her constitutional rights under Art 9(1)?

o

[3] Whether any statement recorded from A under s 22 and sought to be admitted under s 122(5) (a.k.a. a 258(3)) of the CPC could not be so admitted if no caution had been read to him in terms of s 22 of the CPC

/held/

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S 22 contains one of several special powers of investigation given to the police à power to examine a person and compel her to answer questions while making police investigations

•

Express statutory provisions that required a caution to be administered in equivalent circumstances were contained in the “Rules Relating to Statements from Accused Persons” inserted in the CPC in 1960 – the “Schedule E” rules o

Rule 6 required A in custody to be cautioned that he was not obliged to say anything

o

However, these rules were revoked by Act No 10 of 197à intended to render such statements (that are not in substantial compliance with Sched E) admissible so long as they are not tainted by ITP

o •

Therefore, no need for A to be expressly informed

Secondly, on the issue of whether a case falls outside Art 9(1) (and is therefore unconstitutional) when police officers exercise the power to examine a person and compel him to answer questions despite failing to observe precautions of s 22, CoA cited Ong Ah Chuan and Haw Tua Tau: 7

o

The word “law” in Art 9(1) includes principles of natural justice

o

The right of silence has never been regarded as subsumed under the principles of natural justice as this is a rule which originated as being largely evidential in nature §

Holding it as a constitutional right would elevate this evidential rule to a constitutional status despite it being given no explicit expression in the Constitution à requires a degree of “adventurous extrapolation which (the court does) not consider justified”

§

Not merely a matter of balancing prejudice to the administration of justice resulting from depriving the court of relevant & important evidence against the interest protected by the right

o

If the Legislature had intended to guarantee full protection of the right to be informed of one’s privilege against self-incrimination, the rule would have been given specific parliamentary expression, the same way a person arrested’s right to be informed as soon as he may be of the grounds of his arrest and his right to counsel is enshrined in Art 9(3)

o

Moreover, s 23 and s 261, which expressly derogate from A’s entitlement to withhold relevant information before trial, would be rendered ultra vires and invalid if A was entitled to full protection of her right to be informed of her privilege

•

Finally, the failure to expressly inform A of her right to silence does not render a statement inadmissible o

S 22 doesn’t concern admissibility

o

Under s 258, statements made to police officers in the course of a police investigation are admissible unless they fail the voluntariness test of s 258(3)

o

No evidential penalties for failure to comply with s 22 in the EA §

If police officer fails to comply, he is the one who feels the effects of a breach – may be liable in civil proceedings for breach of statutory duty, complaint may be made about him to the appropriate disciplinary tribunal, or he may be found guilty under s 255C of the Penal Code

§

However, none of these courses of action affect the statement’s admissibility & evidential value against A à admissibility is still governed by s 122

o

But – the failure to inform A of his PASI in circumstances where a positive duty has arisen to give such info may amount to an inducement under s 258(3) -

its

reasonable to assume that such an omission may have caused A to say what he otherwise may not have §

Court opined at [28] that there was at least reasonable doubt as to whether he would have said the same things if he had been informed that he was entitled to refrain from doing so

§

At [30]: Exercise of powers of compulsion coupled with silence as to the limitations of those powers may create a positive misrepresentation of the rights of the person questioned à may amount to inducement for the purposes of admissibility •

Situation where an investigating officer has positively created in the person questioned an inaccurate impression of his rights

§

Citing Tsang Yuk Chung – the s 23(1) warning is only saved from being an ITP by s 23(4) à warning is to the effect that if there is any fact on which A 8

intends to rely in her defence in court, she is advised to mention it at least once, and if she holds it back till she goes to court, it may be less likely to be believed §

CoA opined that this warning is far less pressing than what the interpreter read, which is essentially that A is obliged to tell the truth, the whole truth, and nothing but the truth à if s 23(1) is an ITP save for s 23(4), then the words of the interpreter in the present case would a fortiori constitute an ITP, and there is no saving equivalent of s 23(4)

Ong Seng Hwee v PP [1999] 3 SLR(R) 1 - indicates that not informing a suspect of his right to silence is unlikely to have any effect at all. Unless you can show immediate impact, you can’t even argue that it was materially an inducement at all (c/f Mazlan) Facts

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A admitted to employing three immigration offenders in his long statement o

Subsequently told the police that the immigration offenders were actually employed by one Radakirshnan who subleased space on A’s premises, and produced various documents purportedly supporting these allegations, including a statutory declaration made by R

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Also challenged the admissibility of his long statement on the basis that: o

It was made involuntarily – he was told that he was bound to tell the truth, but not cautioned that he was entitled to refrain from stating anything which might expose him to a criminal charge

/held/

•

o

ITP made throughout interrogation

o

He had been given nothing to eat, and was ill and under the effects of medication

Trite that for involuntariness, the burden is on the Prosecution to prove the voluntariness of the statement BaRD

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Oppression o

Relevant inquiry – whether circumstances prevailing at the time of recording the statement were such that A’s free will was sapped and he couldn’t resist making the statement

o

Not proven on the facts – length of questioning was two hours, was allowed to take his medication, and his conduct before and after the recoding of the statement did not suggest he was seriously ill at all à evidence suggested he was perfectly lucid

•

Incomplete recitation of s 22 – alleged result was the impression that he was bound to state truthfully the facts and circumstances of the case with which he was acquainted without being aware of his entitlement to refrain from stating anything that might expose him to a criminal charge. o

On the facts of the case, Court accepted the investigating officer’s testimony – that he did deliver the caution as reflected in the CPC

o

But even if he didn’t, court didn’t believe that the inducement operated on A’s mind or caused him to make the statement à A himself testified that he denied for half an hour that he had employed or harboured immigration offenders

•

Finally, found his evidence on ITP “improbable” à testimony was highly inconsistent

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Lim Lye Huat Benny v PP [1996] 1 SLR 253, 262 à Court did draw adverse inference as accused claimed at trial to be innocent carrier of drugs but failed to mention this fact in his s 121 statement (now s 22) earlier. Facts

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A was charged with trafficking and alleged that he thought he was delivering counterfeit notes and not diamorphine

/held/

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LP Thean JA: A’s explanation for not mentioning his explanation was that his brother had told him that his brother would engage a lawyer to defend him & therefore he did not think it was important to mention that the bag contained counterfeit money

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Explanation not accepted by TJ o

Thean JA held that TJ was entitled to take this view of his evidence and to draw an adverse inference against him

Yap Giau Beng Terence v PP [1998] 3SLR 656, esp para 38 (HC) Facts

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A was charged with corruptly offering a gratification to Susan Goh and one of 2 taxi-drivers to forbear from reporting him to police when they chased him after an accident. o

A failed to mention in the statement that he thought Susan was one of the victims and he offered her compensation and asked her to negotiate with the other victims.

o

Explanation for failure: A wished to consult a lawyer first so as not to say “the wrong thing”.

/held/

•

At HC, Yong CJ held that this explanation was inadmissible. o

Whole purpose of s 123 is to compel A to outline the main aspects of his defence immediately upon being charged, so as to guard against A raising defences at trial which are mere afterthoughts.

o

A cannot escape the consequences of s 123 (now s 261) simply by explaining that he wished to consult a lawyer first, or else s 123 would be rendered otiose

o

Emphasised that it is not in every case that an AI is drawn against A who keeps silent upon being charged. §

An adverse inference will be drawn only if he fails to mention facts which he could reasonably have been expected to mention upon being charged.

o

In the instant case, the appellant had failed to mention in his cautioned statement that he had thought Susan Goh was one of the victims of the accident, that he had offered her compensation and that he had later asked her to negotiate with the victims of the accident on his behalf. §

Must have been evident even without the benefit of consultation with a lawyer, that these facts afforded a legitimate explanation for the offers of money he allegedly made, and that it would be in his interest to mention them.

§

These were facts which A could reasonably have been expected to mention upon being charged, and TJ was perfectly entitled to draw AI against A under s 123 for failing to mention these material aspects of his defence in his cautioned statements.

10

Lau Lee Peng v PP [2000] 2 SLR 628 Facts

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A was charged with the murder of V.

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Pleaded the defence of provocation at trial, alleging abusive language and threats by V. o

Claims that V then used vulgar & abusive language on him & his mother, and threatened to kill him as well

o

Claims that an altercation ensued and blows were exchanged

o

He only reached for the chopper when he thought V was reaching for the chopper, and fearing for his life, grabbed it first and started slashing her neck

o

(Bolded parts were only mentioned on appeal – A claimed that this was because he was of low intellect, and did not understand the importance of doing so)

/held/

•

A’s counsel argued that being a fishmonger of low intellect, A could have failed to mention the crucial allegations in his statements because he did not understand the importance of doing so at the relevant time o

Court did not accept the argument, cited Tan Boon Tat – warning was couched in very simple language, easily comprehensible by those who read English

o

If A does not read & speak English, the charge & the notice of warning are both to be accurately interpreted to him in a language he understands. This would amount to an explanation to him of the charge & the warning. He would have understood from the interpreter the substance of the charge & the implication of the warning

•

Court did not accept A’s explanation for not making these allegations sooner o

Pointed out that in his s 122(6) (now s 23) statement, he had the presence of mind to create the fictional “Ah Meng” to bear responsibility for his crimes

o

With that kind of mind, no reason he could have missed out the alleged abuses or threats uttered by V, or the actions of V in trying to reach for the knives if these things had occurred

•

Court therefore entitled to draw adverse inferences from A’s failure to make these allegations earlier o

What inferences should be drawn is really a matter of judgment for trial judge, who would consider the omission in light of the nature of the omitted fact in relation to the charge A faces

o

Regardless, having heard A’s evidence, TJ was certainly entitled to draw AI against A, and there is no basis for an appellate court to interfere with that determination

•

HHL says unfair – he had no legal advice, probably instinctively denied

• No, Should not be Admitted •

The inference was drawn from a non-disclosure in the context of questioning under s 22, and there is no clear statutory basis for this o

The power to draw an adverse inference is conferred by s 261(1), and is expressly confined to the situation where A fails to mention a matter relevant to his defence “on being charged with an offence, or informed by a police officer… that he may be prosecuted for an offence” 11

o

The provision under which A may be so charged or officially informed is actually s 23, where the police is expected to set out the charge in writing, read it to A, and warn him that the court may be less likely to believe him if he withholds any info in his defence, and then reveals it only at trial. Then and only then is A invited to make a statement

•

S 261(1) therefore permits an adverse inference to be drawn against A from specifically the nondisclosure of material facts when A was invited to give a statement under s 23 – not clear if it permits an adverse inference to be drawn from his non-disclosure during questioning under s 22, which empowers the police to take statements in the course of their investigation, which applies to situations where they have yet to decide on the charge

•

This view is also buttressed by policy considerations such as the potential for injustice since the accused would not know what charges are brought against him, hence he would not know what defences that he can rely on and what facts he need to bring up in order to establish the defences. Furthermore, given that accused persons do not have an immediate right to council, it further militates against the drawing of adverse inferences should the accused fail to mention certain information in his s 22 statement. o

Arguably, police shouldn’t even be able to question A under s 22 once they’ve made an s 23 charge, but changes made in 2010 to s 22 render it explicit that post-charge questioning is permitted §

This amendment goes against the previously established parliamentary intention. When parliament introduced the power to draw adverse inferences in 1976, it decided against extending the power to the non-disclosure of pertinent facts at the initial stages of investigation when A has yet to be charged with an offence or officially informed that he might be prosecuted for it. •

A provision in the amendment bill which would have allowed an adverse inference to be drawn from A’s non-disclosure at the pre-charge stages was deleted following strong opposition to its introduction.

§

Such a reading is logically sound. If A has not even been served with the charge, he may not know what the police are investigating, or what they are going to use against him. This is the equivalent of requiring Df in a civil case to reveal “what his defence was going to be to an undisclosed statement of claim and to submit to questioning upon it”.

o

However, it is now common practice (and statutorily endorsed) for investigating officers to take further statements under s 22 even after A has been charged under s 23 §

Not only is it somewhat premature to charge someone w/o completing investigations, a failure to mention relevant facts in a statement taken days after A has been charged can hardly be considered a failure to mention relevant facts “on being” so charged or informed under s 261(1)

§

S 261(1) was based substantially on cl 1(1) of a bill drafted by the Criminal Law Revision Committee of England and Wales as set out in its Eleventh Report on Evidence (General) in 1972. The Committee noted that under the then Judges’ Rules, post-charge interrogation of the accused was allowed only in very narrow circumstances, and cl 1(1) (the power to draw adverse inferences) “(would) not apply to the limited questioning ... after the accused has been charged”.

§

However, if you look at cases like KSH, the investigating officers obtained statements from A under s 22 even though they had already proceeded against 12

him under s 23, w/o any indication of recautioning him on the risk of adverse inferences

• Reform •

Considering the police do not have to give A access to legal advice immediately upon arrest, PASI should be given greater protection. o

Art 9(3) constitutionally enshrines an accused person’s right to counsel, but its satisfied as long as he is allowed to consult a lawyer “within a reasonable time after his arrest”. §

In Jasbir Singh, a delay of two weeks was also found to be reasonable, and A’s incriminating statements taken were used to convict A

§

In determining what counts as a “reasonable” period, the protection of the accused, his need for legal advice and the importance of the right against selfincrimination are not ranked as highly as they should be

o

The justification for this delay is that there is a risk that allowing a detained suspect to consult a lawyer would likely obstruct police investigation even though the court has yet to offer a convincing explanation of how this is so §

In Leong Siew Chor for example, the defence counsel was willing to forego confidentiality and meet his client in the presence of the DPP & the IO to advise his client on his rights, but was still rejected by the police on the ground that they did not want to take the risk of “external parties impeding investigations and resulting in A shutting up” •

HHL calls bullshit – its fundamentally wrong to prevent A from seeing his lawyer so as to reduce the chances of him getting to know of and claiming his PASI, especially since the court is evidently quite willing to draw adverse inferences from A’s non-disclosure of material facts in the investigatory stage

•

Allowing suspects in custody the access to legal advice would help ensure that A’s statement is taken fairly, accurately, in accordance with the law,

•

While we understand that the police investigation has to be guarded from unlawful or improper impediments, its perverse to treat A’s exercise of PASI as an impediment

•

Additionally, under the adverse inference rules in SG, the court is able to draw an adverse inference from A’s failure to raise “material aspects of his defence in his cautioned statements” (Kwek) o

However, without the assistance of a lawyer, most people don’t have the legal knowledge or be in the state of mind to recall and identify the what facts have legal significance immediately, much less to work out a legal defence

•

Furthermore, in Yap Terence, HC was of the opinion that A is expected to outline the main aspects of his defence immediately upon being charged & cautioned under s 23 o

Higher burden than just having to mention “facts or matters in his defence”

o

But without the assistance of a lawyer, most people don’t have the legal knowledge or be in the state of mind to recall and identify the what facts have legal significance “immediately”, much less to work out a legal defence

o

To deny him access to a lawyer is placing him in a position where he cannot reasonably be expected to do what he’s being called to do in Yap Terence

o

Should use English position – no adverse inference if A has not been allowed an opportunity to consult a solicitor prior to being questioned, charged or informed 13

C. Special Position for PCA •

There is no right against self-incrimination under the PCA o

This is because s 26(d) of the PCA renders it an offence if the accused refuses or neglects to give any information which may reasonably be required of him and which he has it in his power to give (Taw Cheng Kong)

D. Procedural Irregularity •

A s 22 statement is NOT rendered inadmissible merely by the fact that the accused was not informed of his right to remain silent (Mazlan bin Maidun) o

Therefore, based on exp 2(e) of s 258(3), it seems that the evidence will only be rendered inadmissible if it amounted to an ITP under s 258(3) of the CPC, such that it is rendered involuntary.

o

However, even though the evidence is nonetheless admissible, the presence procedural irregularities would still possibly trigger (1) the discretion to exclude under Kadar (see Wrongfully Obtained Evidence) or (2) affect the weight of the evidence.

3. SILENCE WHEN CHARGED – S 23, S 261(1) •

An issue arises as to whether an AI may be drawn from X’s failure to mention facts which were subsequently relied upon in his defence of ________ when making his s 23 cautioned statement.

•

S 261(1) of the CPC allows the drawing of adverse inferences if the accused fails to mention a material fact of his **defence* which he could reasonably have been expected to mention when questioned, charged or informed. o

Therefore AI may only be drawn if: §

[1] A relies on a fact in his defence;

§

[2] He failed to mention the fact to the police officer when he was invited to make statement under s 23;

§

[3] ‘In the circumstances existing at the time’ when the accused was ‘questioned, charged or informed’, ‘he could REASONABLY have been expected to mention’ that fact.’.

o

On the facts of the case... §

Therefore the issue is whether it was reasonable to expect X to raise _______. The courts may judiciously decide not to draw AI if A’s failure to mention _______ was justified by circumstances (Terence Yap).

§

This is a matter of judgment for the trial judge, who would no doubt consider it in the light of the nature of the omitted fact(s) in relation to the charge the accused faced (Lau Lee Peng)

•

What are good reasons? o

Azman - the police officer persistently disbelieved accused when accused admitted to making mistakes in statement. Thereafter, the court held that no adverse inference would be drawn from accused’s silence because he had reasonable grounds for believing that it was useless to say more.

14

o

Benny Lim - SGHC did not draw an adverse inference on the cautioned statement because it was taken at an unearthly hour (4.25 – 4.55am) and the accused was too tired and hungry to think of his defence.

o

Kwek Seow Hock - the court as of the view that the accused was too tired and hungry to think of his defence at the time the s 23 statement was recorded. Heroin craving also played a role.

•

Bad reasons o

Yap Giau Beng - adverse inference was drawn against A’s failure to state material facts of his defence in his cautioned statement because HC held that it was no excuse for A to say that he wished to consult lawyer first because he did not wish to say the “wrong things”.

o

Lau Lee Peng, court held that adverse inference was drawn against the accused’s failure to state material facts of his defence in his cautioned statement because it was no excuse for him to say that he was of low intellect.

A. Wanted to see a Lawyer •

X may argue that he failed to mention (material exculpatory fact) because he wished to see a lawyer before saying anything to the police. While Yong CJ in Terence Yap found this reason to be insufficient since it would render s 261(1) otiose, it is submitted that it is in fact reasonable for even an innocent person to refuse to respond to the notice before receiving legal advice. o

The assumption that all innocent people can provide a reasonable explanation for failing to mention the defence they later rely on in their charged statement ignores the fact that people with different charges, different personalities & different intellects respond differently to the s 23 warning. §

May instinctively deny everything – especially problematic if they try and raise a ‘mixed’ defence;

§

May be afraid that raising a ‘mixed defence’ involving both inculpatory & exculpatory elements would implicate him in another crime

o

§

May not know that the material fact is a legal defence;

§

May be unsure about the consequences of his statement

Therefore, the court should be slow to impose too onerous a burden on A by insisting that A must outline the main aspects of his defence immediately upon being charged & cautioned under s 23 (Terence Yap) since A has no right to access to a lawyer upon being charged.

•

If arguing for police à However, it can be argued that on the facts of the case, it was evident to X, even without legal advice, that (the withheld fact) is exculpatory since it disputes the police’s version of the story. As such, the court is likely to draw an AI from X’s failure to mention (the withheld fact).

B. Procedural Irregularity

• Severe Non-Compliance •

As seen in Exp 2(e) of s 258(3) a procedural irregularity does not affect the admissibility of the evidence per se, unless the procedural irregularity amounts to an ITP under s 258(3) of CPC – such that it fails the voluntariness test.

15

o

However, it is arguable that ‘merely’ and ‘fully’ as used in Exp 2(e) suggests that severe defects may result in inadmissibility

•

Procedural Irregularity might also affect: o

(1) Discretion – PP v Dahalan bin Ladaewa; Muhammad bin Kadar v PP

o

(2) Weight – PP v Tan Kiam Peng

• Failure to give S 23 Caution •

The court in Tsang Yuk Chang has made clear that a failure to give caution under s 23 does not affect admissibility of the statement, as long as the voluntariness test under s 258(3) is satisfied

•

The issue is then whether the court is entitled to nonetheless draw AIs from A’s silence or failure to mention certain facts, even when he was not given caution under s 23. o

On this point, the court will take the non-compliance into consideration in its decision of what inferences, if any at all, should be drawn from A’s failure to mention certain facts (Tsang)

o

Therefore the test for determining whether non-compliance with s 23 should affect the drawing of adverse inferences under s 261(1) is “whether it could be said that the circumstances existing at the time when the accused was charged with the offence or officially informed that he might be prosecuted for it, were such that he could not as a result of the noncompliance with s 122(6) be reasonably have been expected to mention certain facts on which he was relying in his defence in court.

o

Or put another way, was the result of the non-compliance such that he was not made aware that his right to remain silent without suffering adverse consequences had been removed by s 23 and s 261(1)?

PP v Tsang Yuk Chung [1990] 2 SLR(R) 39 Facts

•

A was convicted of murder o

•

Cautioned statement (s 23) was admitted at his trial

Appealed à argued that cautioned statement should be admitted, as the investigating officer recording the statement had failed to comply with s 23 provisions since the officer recording the statement failed to explain the charge or prescribed warning

/held/

•

S 23 itself doesn’t provide for the admissibility of statements recorded thereunder o

Admissibility is still founded s 258(3)

o

A statement, whether or not purported to have been made under s 23, is admissible so long as s 258(3) is satisfied

•

In this case, the statement is admitted under s 23 not as an inculpatory, exculpatory, or mixed statement, but as evidence of the failure by A to mention a fact which in the circumstances existing at the time he could have reasonably been expected to mention when he was charged and consequently allowing the court to draw such inferences as appear proper under s 261 o

Non-compliance with s 23 doesn’t result in inadmissibility, but in enabling the court to take non-compliance into consideration when deciding what inferences, if any, should be drawn from A’s failure to mention certain facts (at [20])

o

However, court acknowledged at [21] that there may be a case where non-compliance with s 23 is serious enough that it will not draw any inferences at all from A’s failure to mention certain facts 16

§

Non-compliance can be trivial in nature – e.g. non-material typographical error from a notice in writing à and court consequently won’t be prevented from drawing such inferences as appear proper

§

At [23]: Test is whether it could be said that the circumstances existing at the time when A was charged with the offence, or officially informed that he might be prosecuted for it, were such that he could not as a result of the non-compliance with s 122(6) be reasonably have been expected to mention certain facts on which he was relying in his defence in court.

§

Or alternatively - was the result of the non-compliance such that he was not made aware that his right to remain silent without suffering adverse consequences had been removed by s 122(6) and s 123(1)?

o

Further erosion of A’s rights – in the previous s 122(6) of the CPC, there was a requirement of “explaining” the notice to A, which has been removed in s 23 à all the IO needs to do now is to serve and read the notice contained in s 23

• When X Doesn’t Understand the S 23 Warning •

Under s 23(1) of the CPC, the accused must be served with and have read to him a notice in writing: o

You have been charged with or informed that you may be prosecuted for... If you keep quiet now about any fact or matter in your defence and you reveal this fact or matter in your defence only at your trial, the judge may be less likely to believe you. This may have a bad effect on your case in court.

•

It should be noted that the requirement that a caution “shall be explained to” the accused has been removed from s 23 of CPC (cf old s 122(6)). So at this point, so there is no duty to explain the warning (Tsang) o

If you don’t get it its too bad à Not even a non-compliance

o

If you don’t understand English and it wasn’t explained to you, that is a non-compliance §

Under s 23(3) of the CPC, a cautioned statement made by an accused must – (a) be in writing; (b) be read over to him; (c) if he does not understand English, be interpreted for him in a language that he understands; and (d) be signed by him.

§

Whether this is sufficient to render the statement inadmissible depends on how you feel about discretions, but whether you can still draw an adverse inference would depend on the Tsang non-compliance test, because being given a warning you don’t understand is equivalent to not being given a warning at all •

Tsang: Therefore the test for determining whether non-compliance with s 23 should affect the drawing of adverse inferences under s 261(1) is “whether it could be said that the circumstances existing at the time when the accused was charged with the offence or officially informed that he might be prosecuted for it, were such that he could not as a result of the noncompliance with s 122(6) be reasonably have been expected to mention certain facts on which he was relying in his defence in court.

•

Or put another way, was the result of the non-compliance such that he was not made aware that his right to remain silent without suffering adverse consequences had been removed by s 23 and s 261(1)?

17

4. SILENCE DURING TRIAL – S 230(1) & 291(3) A. Preliminary

Issue: When

does

X

have

to

give

Defence?

(S

230(1)(j)) •

S 230(1)(j) of the CPC states that if the court is of the view that there is some evidence which is not inherently incredible & which satisfies each & every element of the charge as framed by P or as altered or framed by the court, the court must call on A to give his defence

•

Therefore, unless P’s evidence is inherently so incredible that no reasonable person would accept it as being true, the court will call on X to give his defence (Haw Tua Tau)

B. Preliminary Issue: Is X compelled to testify? •

Under s 230(1)(m), X may elect whether to enter the witness box to give evidence, such that he is possibly exposed to xx by P

C. Drawing an AI under s 291 •

Where A is called to give defence but refuses to testify, his silence at trial upon being called to enter a defence allows the court to “draw such inferences from the refusal as appear proper (s 291(3)) when determining whether A is guilty of the offence charged.

•

This law is not unconstitutional as it does not “create a genuine compulsion on A to submit himself at trial to xx by P, as distinguished from creating a ‘strong inducement’ to do so (Haw Tua Tau)

• Cases •

In PP v Tse Nathan, it was held that the accused’s silence gave rise to an inference of knowledge of drugs.

•

In Ramakrishana Ramayan v PP, it was held that accused’s refusal to testify could carry dire consequences.

•

In Loo Koon Seng v PP, it was held that it is not enough to say that one keeps quiet to avoid implicating others.

• Application •

What inferences the court can properly draw from A’s refusal to give evidence depends on the circumstances of the particular case, and is a question to be decided by applying ordinary commonsense (Haw Tua Tau at 153) o

However, it must be noted that the AI does not shift the burden of proof. The effect of an adverse inference against an accused person is that once it is drawn it can be employed to support or corroborate aspects of the P’s case (Constance Chee at [91]). The burden of proof still lies with P to prove the charge BaRD.

•

Kelvin Chai citing Murray at [82]: This does not mean that court conclude A is guilty simply because he does not give evidence. o

[1] First, P must establish a prima facie case;

18

§

If not à there is no case to answer, and the case has so little evidential value that a failure to deal with the specific matters cannot justify an inference of guilt

§

If yes à the fact that there’s a case means that aspects of the evidence taken alone or in combination with other facts clearly call for an explanation that A ought to be in a position to give, if an explanation exists

o

[2] In determining guilt, fact finder can only draw ‘such inferences from the refusal as appear proper

•

‘If aspects of the evidence taken alone or in combination with other facts clearly call for an explanation which the accused ought to be in a position to give, if an explanation exists, then a failure to give any explanation may as a matter of common sense allow the drawing of an inference that there is no explanation and that the accused is guilty’ (Haw at 193, cited in Kelvin Chai) o

Took Leng How at [43]: However, an AI should only be drawn in appropriate circumstances. A court would be in grave error if it were to draw an adverse inference of guilt if such an inference were used solely to bolster a weak case. §

As was observed by Prof Tan Yock Lin, citing the Australian decision of Weissensteiner, A’s silence “cannot fill in any gaps in the prosecution’s case; it cannot be used as a make-weight”. •

He further opined that “[t]he inference is properly drawn where the silence of the accused affects the probative value of the evidence which has been given. Where evidence which has been given calls for an explanation which the accused alone can give, then silence on his part may lead to an inference that none is available and that the evidence is probably true”

o

However, where there is a presumption at law, the presumption + AI may sufficiently establish P’s case

o

However, in cases where A’s mental or physical condition may make her unsuitable to be called to give evidence in court, no AI should be drawn from the failure to testify (s 291(6), per Took Leng How at [44])

•

Remaining silent on legal advice is: o

(A) A bad fucking idea;

o

(B) No bar to the drawing of adverse inference by the court (Ramakrishnan so/ Ramayan v PP).

• Cases Haw Tua Tau v. PP [1981] 2 MLJ 49 (PC) /held/

•

S 291 made no change to existing law o

English law has always recognised the right of the deciders of fact in a criminal trial to draw inferences from the failure of a defendant to exercise his right to give evidence and thereby submit himself to cross-examination. It would in any event be hopeless to expect jurors & judges, as reasonable men, to refrain from doing so

o

Failure of A to go into the witness box to contradict the evidence of the prosecution on matters that were within his own knowledge or to displace place a natural inference as to his mental attitude at the time of the alleged offence that, in the absence of some other explanation, would properly be drawn by any 19

reasonable person from his conduct at that time •

S 196 (Now s 291(3)) does not compel A to testify, though it provides him with an inducement to testify o

Provision makes clear that A has a legal right to refuse to give evidence at trial, and no legal sanctions can be imposed on him if he chooses to remain silent

o

It is only when he elects to give evidence that he exposes himself to the risk of being compelled, under the threat of legal sanctions, to answer questions put in xx, which, if answered truthfully, may show that he was guilty of the offence with which he was charged

o

A is not compelled in law to give evidence on his own behalf §

The inferences that the court may draw from his failure to testify are not enlarged by the amendments to the Criminal Procedure Code; they are limited, as they have always been, to such inferences as appear to the decider of fact to be proper in the particular case having regard to all its circumstances

Oh Laye Koh v PP [1994] SGCA 102 Facts

•

A was charged with murder of V

•

P sought to adduce evidence of three statements A had made to the police – TJ was not satisfied that they had been voluntarily made and therefore declined to admit them

•

Also felt that the circumstantial evidence that P adduced was insufficient to support a prima facie case against A that even warrants calling for his defence

/held/

•

At [14]: TJ was at the liberty to draw any inferences as may appear proper from failure of A to give evidence on oath, including the ultimate AI of guilt o

Cited Haw: Lord Diplock observed that it would be hopeless to expect jurors or judges, as reasonable men, to refrain from drawing inferences from the accused's failure to exercise his right to give evidence, including inferences adverse to the accused.

o

After all, only A is in a position to contradict P’s evidence on matters that are peculiarly within his own knowledge or to displace a natural inference as to his mental attitude at the time of the alleged offence that, in the absence of some other explanation, would properly be drawn by any reasonable person from his conduct at that time

o

What inferences are proper to be drawn from an accused's refusal to give evidence depend upon the circumstances of the particular case, and is a question to be decided by applying ordinary commonsense

•

At [15]: Process would have involved TJ’S consideration of whether on the totality of the prosecution witnesses' evidence (as tested in XX), together with any inference that could properly be drawn from A’s silence, the accused's guilt could be established beyond reasonable doubt o

On the facts of the case, incriminating primary facts:

20

o

Circumstantial evidence showed that he was one of the last people to have been seen with V, tried to obtain false alibis from 3 different sources, and had even led the police to the exact spot V’s body was found at

o

“The circumstantial evidence stacked up against the appellant at the close of the prosecution case had been so damning in nature as to demand that he proffered some explanation for the death of the girl who was last seen alive with him.... By not rebutting the evidence, which as it then stood would have warranted his conviction if unrebutted, the appellant's silence presented the trial judge with an additional factor to consider in assessing whether the appellant's guilt had been established beyond reasonable doubt.”

Took Leng How v PP [2006] 2 SLR(R) 70, especially [40]-[45] à A’s silence cannot fill up the gaps in P’s case Facts

•

A appealed both his conviction and sentence under s 300 of the Penal Code for murder – one of the grounds was whether TJ was wrong to draw an adverse inference against A for refusing to give evidence at trial

/held/

•

At [41]: Concept of adverse inference was first introduced in the CPC by the CPC (Amendment) Act 1976 o

Allows the court to draw whatever inferences “as appear proper” from A’s failure to testify when called upon by the court to give evidence

o

Citing Haw Tua Tau: PC opined that court can draw “what inferences are proper to be drawn from A’s refusal to give evidence (depending) on the circumstances of the particular case, and (this) is a question to be decided by applying ordinary common sense”

o

Such inferences can go towards many things, the strongest inference being one of guilt itself

•

At [43]: an adverse inference should only be drawn in appropriate circumstances o

Court would be in grave error if it were to draw an adverse inference of guilt if such inference were used solely to bolster a weak case

o

Cited Tan Yock Lin: “silence of A cannot fill in any gaps in P’s case; it cannot be used as a make-weight”. Inference is only properly drawn when A’s silence affects the probative value of the evidence which has been given

o

Where the evidence that has been given calls for an explanation that only A alone can give, then silence on his part leads to an inference that no explanation is available and the evidence is true

•

Current s 291(6) expressly forbids the drawing of inferences where it appears to the court that A’s physical or mental condition makes it undesirable for him to be called upon to give evidence o

D contended that no such inference should be drawn in the present case since A was allegedly suffering from schizophrenia

o

However, both psychiatrists who examined A filed reports stating that he was fit to plead, and detailed statements that A gave the police evidenced his ability to recollect the events that occurred from the date of V’s death to the date of A’s arrest

•

However, at [44], acknowledged that even where A is diagnosed as fit to plead yet still 21

exhibiting certain mental or physical symptoms in the course of the trial, the drawing of symptoms would appear undesirable, and may be unwarranted o •

This is to be determined by the TJ, as he deems appropriate in the circumstances

On the facts of the case, A was the only person who could shed some light on the events transpired between V and himself in that storeroom à CoA found TJ justified in drawing the inference that A had caused V’s death, or at least, that his failure to challenge P’s evidence enhanced its probative value

Chai Chien Wei Kelvin v PP [1998] 3 SLR(R) 619 at [80]-[83]; [1999] 1 SLR 25 especially [61]-[62] Facts

/held/

•

A and A1 were jointly tried for attempting to export drugs from SG to Taipei

•

Both elected to remain silent

•

At [80], cited Bentham: “innocence claims the right of speaking as guilt invokes the privilege of silence”.

•

In other words, the court in deciding whether a case has been made out warranting conviction will act on the presumption that: o

All evidence of primary facts is true, unless it is inherently so incredible that no reasonable person would accept it as being true;

o

There will be nothing to displace those inferences as to further facts or the state of mind of the accused that would reasonably be drawn from the primary facts in the absence of any further explanation [81]

•

In this case, in electing to remain silent, court was entitled to draw such inferences from the refusal… as appeared proper, including the inference that A was guilty of which he was charged o

Citing Murray: This does not mean that the court can conclude simply because A does not give evidence that he was guilty of the offence he was charged with. §

First, P must establish a prima facie case – a case for A to answer •

If not à there is no case to answer, and the case has so little evidential value that a failure to deal with the specific matters cannot justify an inference of guilt

•

If yes à the fact that there’s a case means that aspects of the evidence taken alone or in combination with other facts clearly call for an explanation that A ought to be in a position to give, if an explanation exists

•

Failure to give an explanation may as a matter of common sense, allow the drawing of an inference that there is no explanation and is guilty

§

Secondly, the court can only draw from a refusal to appear “such inferences… as appear proper”

§

What appears proper depends on the circumstances of the particular case, and is a question determined by applying ordinary common sense (citing Haw Tua Tau)

22

PP v Ker Ban Siong [1992] 2 SLR(R) 181 Facts

•

A was charged with criminal trespass since he entered the Bukit Timah Turf Club in contravention of a notice prohibiting him from entering the club for one year o

A was called upon to enter defence à remained silent

o

Issue was whether a conviction for criminal trespass could be sustained unless there was “further evidence” of an intention to annoy, over and above he fact that he had entered in contravention of the notice

/held/

•

At close of P’s case, A’s counsel made a submission of “no case to answer”, contending that the vital ingredient of an intention to annoy was not proved

•

Court held that it was proven by an adverse inference because A had chosen not to testify in his own defence at trial o

TJ would have been justified in drawing an adverse inference as to the intention with which he entered the club

o

A had been warned on no uncertain terms that his presence on the premises was undesirable, and he then chose to disregard the warning

o

Presence called for some explanation, and A chose to offer none

o

Court therefore made the inference that he chose not to testify because he entered the Turf Club with intent to annoy

23