Wrongfully Obtained Evidence mugs.pdf

Wrongfully Obtained Evidence 1.

RECAP

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HERE’S WHAT YOU MISSED LAST WEEK o

If evidence is logically irrelevant à inadmissible

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If evidence is relevant but caught under a hearsay rule à must be inadmissible (there’s no discretion to include)

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If evidence is relevant and not caught by an exclusionary rule à admissible

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What if evidence is wrongfully obtained?

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The general rule is that it doesn’t matter how you get it, even if you steal it, it would still be admissible (R v Leatham) o But that’s not always the case – an exception is a confession obtained involuntarily, which is strictly inadmissible o Also evidence obtained by torture – to convict a person on evidence procured by torture strikes at the very heart of a fair trial (A v Home Dept) Essentially, the fact that evidence is obtained wrongly doesn’t make it inadmissible – but court has a general discretion, and there are specific exceptions

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Why does the court have a general exclusionary discretion? •

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Not in EA – s 2(2) says any rule of evidence inconsistent with the EA is not applicable o S 32(3), s 47(4) – general discretion for HSE and expert opinion, but its not general o So can we turn to the CL, via s 2(2)? c/f CPC – s 6: wrt to any matter of criminal procedure not covered by CPC or any other law, court may adopt any procedure “as the justice of the case” requires à no one has ever argued that this is where CL discretion comes from tbh

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Rationales for discretion

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Redmayne reading – the illegal manner in which the evidence was obtained may put the reliability of the evidence in question o In Muhd Bin Kadar, CoA used reliability rationale – the fact that the evidence was wrongfully obtained is relevant insofar as it would affect the reliability of the evidence o Of course its not just unreliable – its wrong, its not just the case that we can do whatever we want as long as the evidence is reliable, the legitimacy of the judicial process isn’t just based on reliability o Court would be complicit in the illegality if such evidence would be admissible – a trial is also broadly about securing the legitimacy of the conviction, it must be conducted with fairness & integrity Disciplinary rationale o This is easily rebuttable – excluding evidence doesn’t punish the officer, disciplinary proceedings do

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VK Rajah at [68] of Kadar seems to indicate its not the primary rationale, but its somewhere there C/f deterrence rationale – deters future conduct of the same sort o Police have no incentive to use such methods if they know the evidence wouldn’t be admissible Protective rationale Legitimacy/judicial integrity rationale o Compromises the integrity of courts if they act on the fruits of manifestly inacceptable practices by law enforcement officers – criminal justice would lose its moral authority if the system that enforces the law doesn’t obey the law o Yong CJ in SM Summit: this cuts both way, the system also loses integrity when we let people of for trivial breaches o

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A. Framework for Admissibility + Exclusion •

[1] Is the evidence logically relevant? o

Given that in the EA, logical relevancy is ipso facto equated with admissibility, look at the general relevancy sections under s 6 – 11

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If the evidence is logically relevant à prima facie admissible

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If the evidence is logically irrelevant à inadmissible

[2] Is the evidence caught under any exclusionary rules? o

Even if the evidence is prima facie admissible, it is inadmissible if caught under any exclusionary rule. No discretion is involved.

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Exclusionary rules, for which exceptions are provided for under specific sections of the EA & CPC are:

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Similar fact rule;

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Character evidence rule;

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Hearsay rule;

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Opinion rule;

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Failure of voluntariness test under s 258(3) of the CPC

[3] Evidence is logically relevant & not excluded as a matter of law, but can it be excluded as a matter of discretion? o

Exclusions in the interests of justice for hearsay (s 32(3)) & opinion (s 47(4)) §

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Exclude specific types of evidence

Exclusions as a matter of Common Law discretion §

Arguably no explicit provision in the EA or CPC that provides for a discretionary exclusion of wrongfully obtained evidence

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Types of exclusionary discretion •

Improperly obtained evidence – Procedural irregularities

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Evidence obtained by entrapment

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Illegally obtained evidence

Scope of the exclusionary discretion •

Narrow – concerns unfairness based on a wrong outcome attained at trial

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Broad – encompasses unfairness in the pre-trial collecting process

2. ILLEGALLY OBTAINED EVIDENCE •

The evidence of _____ was obtained illegally because _______.

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However, X may not use this illegality as a substantive defence because he did in fact possess the requisite mens rea and actus reus (Sang, followed in How Poh Sun)

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Nonetheless, an issue arises as to whether the court has a discretion to exclude such illegally obtained evidence

A. Law •

It was first established in Cheng Swee Tiang that a court has the discretion to exclude illegally obtained evidence if its reception would operate unfairly against A taking into account “the interest of the individual to be protected from illegal invasions of his liberties by the authorities [and] the interest of the state to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done”

Cheng Swee Tiang v PP [1964] MLJ 291 (HC of three judges) Facts

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/held/

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Undercover officer was sent to a provision shop. Officer asked for an illegal lottery ticket. Shopkeeper was charged with running an illegal lottery. The issue was whether the court had discretion to exclude the evidence. o By the time of the appeal the AG decided not to support the prosecution. o But the three-member High Court (not CA) nevertheless offered its views on the matter. Majority: Wee CJ & Chua J Following dicta from common law cases such as Kuruma, it is undisputed law that while ‘evidence unlawfully obtained is admissible if relevant, there is a judicial discretion to ignore such evidence if its reception would operate unfairly against A o HOWEVER: Rejected the further proposition that “in the exercise of its discretion and as a matter of public policy the court will normally, though not necessarily, exclude evidence obtained by law enforcement officers by consciously unlawful means.” Rather, advocated a case by case approach that considered two opposing interests: § [1] The interest of the individual to be protected from illegal invasions of his liberties by the authorities; § [2] The interest of the State to secure that evidence bearing upon the commission of the crim & necessary to enable justice to be done shall not be withheld from the courts on any merely technical ground Majority treated this as an entrapment case (but its doubtful whether it is) o Found that while the courts have “consistently and in no uncertain language criticised the use of agent provocateurs, whether they be law enforcement officers or not, the courts have also consistently admitted evidence obtained by such persons provided its admissibility does not operate unfairly against an accused.” o Test: Whether the admission of the evidence would operate unfairly against A at trial o Court may also take into account not just the effect of admitting the evidence, but also the unfairness in the manner in which evidence was taken before trial. Cited cases: § E.g. In Kuruma, where admission of a piece of evidence had been obtained from A by a trick § Callis v Gunn, if ‘there was any suggestion of it having been obtained oppressively, by false representations, by a trick, by bribes, anything of the sort Minority: Ambrose J The Kuruma discretion, which is a new development in the common law does not apply in SG because of EA Phyllis Tan’s evaluation o Found that Wee CJ in Cheng was only concerned with the concept of fairness as the 3

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sole basis for determining whether or not evidence obtained by entrapment should be admissible. § Gave no guidance on how court should determine the fairness of preferring one interest or another Also approved Ambrose J S observation that discretion to exclude has no place in Singapore was approved.

Subsequently, in How Poh Sun, the court followed this English position in R v Sang such that o

(1) A judge in a criminal trial always has a discretion to refuse to admit evidence if in his opinion, its prejudicial effect outweighs its probative value;

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(2) Save with regard to (a) admissions & confessions and (b) generally with regard to evidence obtained from A after the commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained.

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(3) No ground for exercise of discretion to exclude that evidence because it was obtained as a result of the activities of an agent provocateur

How Poh Sun v PP [1991] 2 SLR(R) 270 Facts

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A was arrested, charged with, and convicted of a capital drug trafficking charge following an operation set up by the CNB using another offender, Goh, who was prepared to co-operate with the narcotics police o Goh contacted A and told him that a buyer wanted a large quantity of “goods” (i.e. heroin) o Would-be purchaser actually a narcotics officer CoA, held that this was a classic case of A being given an opportunity to commit the offence, as opposed to being instigating to commit the offence, since A had gone to meet Goh for the sole purpose of selling the drugs Citing Lord Diplock in Sang, entrapment is not a defence of a criminal charge, and the law in SG on admissibility of illegally obtained evidence is as stated in Sang – all relevant evidence, including entrapment evidence, is admissible unless its prejudicial value outweighs its probative value o Court not concerned with how the evidence is obtained – its not for the court to discipline the police – the role of the court is to ensure that A has a fair trial according to the law § Judge is concerned with not how the evidence sought to be adduced by P has been obtained, but with how it is used by P at trial § If the evidence really was obtained illegally, there will be a remedy in civil law, and if it was obtained legally but in breach of the rules of conduct for the police, then this is a matter appropriate for the disciplinary authority to deal with o As much as the judge may dislike the way in which a piece of evidence was obtained before proceedings commenced, if it is admissible evidence probative of A’s guilt, it is no part of the judicial function to exclude it for this reason

In the later decision, the HC in SM Summit distinguished Sang and held that if the commission of the offence was brought about by an illegal act on the part of the agent provocateur, any evidence so obtained in relation to the commission of the offence should be excluded.

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Yong CJ in Summit drew a distinction between cases where police conduct has merely induced A to commit the offence which he has committed, and a case where illegal police conduct itself constitutes an essential element of the charged offence (entrapment)

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In situation [1] – public interest in conviction & punishment of A is likely to prevail over other considerations, and the exclusion of evidence would in fact undermine judicial integrity in allowing the acquittal of a guilty person

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In [2] – the illegality & threat to the rule of law which it involves assume a particularly malignant aspect, and the integrity of the administration of criminal justice would require such evidence to be exclude.

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Summit test: whether there was illegality preceding the crime which was designed to bring about the commission of the crime

SM Summit Holdings Ltd v PP [1997] 3 SLR(R) 138 Facts

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/held/

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Involved a petition for criminal revision brought by Summit CD & its parent company to set aside 3 search warrants issued under the CPC in order to recover a large quantity of business records seized under the warrants o Required Summit to show that BSA obtained the warrants w/o any reasonable cause for suspecting that there was in their premises any article or document infringing the copyright & TMs of BSA’s principals o Evidence relied upon by BSA in support of the copyright warrant was obtained through the private investigator JC o JC engaged by BSA to obtain evidence that Summit was engaging in pirating master CDs containing copyrighted software belonging to BSA’s principals JC approached TSY (an asst manager of Summit Holdings) to ask him to replicate the master CDs which he brought with him o Four CDs which were counterfeits containing programs belonging to BSA’s principals o TSY agreed to do it for $4,000 o After BSA received the replicates and originals, they applied for & obtained the search warrants Yong CJ noted that this was ‘not the usual case of entrapment… where a law enforcement officer who is out to trap a seller of counterfeit products pretends to be a genuine purchaser & purchases a counterfeit product’ o What PI did was to bring right counterfeit masters & ask the petitioners to replicate them o Clear case where illegality preceded the crime and was designed to bring about the commission of crime’ o C/f Sang, where the police conduct has merely induced the person to commit the offence which he has committed, this is a case where the illegal police conduct itself constitutes an essential ingredient of the charged offence o Sang is not of universal application in all cases of illegally obtained evidence, distinguishable because: § Sang concerned the admissibility of evidence, but this is an issue of whether the party is entitled to retain evidence; § Sang involved illegality on the part of the police but this involves an illegality on the part of PI • In the case of the police, law has to recognise that it cannot unduly hamper the police in their investigations, and certain crimes can only be detected by the use of some sort of deception (at [50]) • The same doesn’t apply to PIs – no public interest in the members of the public undertaking such conduct The present case is ‘not the typical case of illegality in the obtaining the evidence of a crime 5

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already committed but a case where the illegality procured the very offence.’ o There is a distinction between the case where police conduct has merely induced the accused person to commit the offence which he has committed (as in Sang) and the case where the illegal police conduct (here, the illegal conduct of the PI itself constitutes an essential ingredient of the charged offence.’ o Different tests apply for the two categories. § In the former category, it is a case where the public interest in the conviction and punishment of those guilty of crime is likely to prevail over other considerations, and the exclusion of evidence would in fact undermine judicial integrity in allowing such alleged offenders get away § In the latter category, the illegality and the threat to the rule of law which it involves assume a particularly malignant aspect. HC also rejected the Australian balancing test of Ridgeway and Bunning v Cress: o In the Canadian and the Australian approaches, the rationale is founded on the need for the courts to protect the integrity of their processes as well as the need to exercise judicial control over the police o However, opined that both of these approaches are completely unworkable in practice. While they attempt to identify the policies, they stop short at articulating clearly which way the discretion ought to be exercised.” o Criticised that without a clear principled approach, the use of discretion can practically justify any result which the trial judge wishes to reach, and would be a fertile source of grounds of appeal. In the present case, the discretion should be exercised to exclude the evidence: o The actual making of the counterfeit CDs had been organised by the PI for the purpose of obtaining the conviction of the person to whom they were supplied. o In addition, there was no allegation that [the assistant general manager of the company with whom the private investigator dealt] actually knew that the masters were infringing copies…. The integrity of the administration of criminal justice would require that such evidence be excluded.’ Present case is HC at [41]: In such a case the illegality is only in relation to the means of proof of the offence already committed, because JC brought counterfeit masters and asked Summit to replicate them o Clear case where illegality preceded the crime & was designed to bring about commission of the crime o C/f Sang, where the police conduct has merely induced the person to commit the offence which he has committed, this is a case where the illegal police conduct itself constitutes an essential ingredient of the charged offence In Sang type of cases, the public interest in conviction & punishment of those guilty of crime is likely to prevail over other considerations, and exclusion of evidence would in fact undermine judicial integrity in allowing such alleged offenders to get away However, in this type of cases, the illegality & threat to the rule of law which it involves assumes a particularly malignant aspect o Not only were the counterfeit masters supplied, the actual making of the counterfeit CDs were organised by the PI (which already infringes the copyright of the programmes) for the purpose of obtaining the conviction of the person to whom they were supplied o Additionally, no allegation that TSY, acting behalf of Summit, actually knew the masters were infringing copies CoA in Phyllis Tan found Summit problematic for the following reasons: o In respect of the finding that JC organised the actual replication of the masters, the fact was that JC did not have to instigate, persuade, or cajole Summit to replicate the Masters à Summit did so on a commercial basis in the ordinary course of business o In respect of the finding that JC’s illegality preceded the charged offence, the fact was that JC committed no offence in purchasing the original counterfeits, or in getting Summit 6

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to make the replicas because he did so with BCA’s consent à therefore no relevant preceding offence In respect of the finding that Summit committed an offence in replicating the masters, there was no such offence since BSA clearly consented to BSA making the copies since consent is a question of fact and the fact that BSA wanted JC to entrap Summit did not change the fact of consent Therefore, the ruling of law in Summit was wholly unnecessary, since no preceding or subsequent offence has been committed by any party on the facts of the case Also, the approach in Summit means that however trivial the preceding unlawful act may be in comparison with the charged offence, the evidence thereby obtained will be inadmissible. § “It is undesirable to treat all preceding illegal conduct as sufficient to exclude evidence thereby obtained” § In adopting a black-and-white approach to the issue, Summit does not provide the necessary flexibility that would enable the courts to resolve the competing public interests. If a test under Singapore law were necessary to determine whether or not entrapment or illegally obtained evidence, the proper test would be a balancing test identified in Ridgeway. [however, the HC went on to deduce that there is no discretion to exclude entrapment evidence in Singapore because of the EA]

HHL Evaluation o Court firmly rejected the disciplinary rationale & pointed out that judicial integrity cuts both ways § ‘It is not the business of the court to discipline the police. While the court should not condone illegality on the part of law enforcement officers, the exclusion of evidence is completely inappropriate in a trial. By saying that, I do not under-estimate the importance of judicial integrity. Judicial integrity is important since the public would lose respect for the court as a dispenser of justice if it is seen to condone illegality, but judicial integrity is undermined when the public perceives that factually guilty people are getting away with serious crimes because of a trivial breach of legislation.’

Rayney Wong then in dicta suggested an expanded reading of SM Summit such that unlawfully obtained evidence should be excluded without explicitly considering the balancing approach of PE>PV.

Wong Keng Leong Rayney v Law Society of Singapore [2007] 4 SLR(R) 377 (CA; High Court decision reported in [2006] 4 SLR(R) 934) Facts

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Instructing solicitors hired a PI to obtain evidence that Respondent’s firm had been engaging in touting convenyancing work o PI firm engaged Jenny Lee to run the operation – she represented herself as a real estate agent who may want to engage the respondent in her purchase of property o Made recordings of their conversations – when Jenny informed Rayney Wong that the sale was aborted and paid him $500 for preliminary work done, he gave her $150 out of that $500 as reimbursement for her expenses HC: Rajah J At [61]: Summit in effect carves out another exception to Sang, where the illegal methods of an investigation precedes & forms part of the illegal conduct for which A is being charged. o Exception: the agent provocateur himself engages in prior illegal conduct in order to procure the offence for which A is charged. o Whether Summit intended to leave open the possibility that there could be other situations where it may hold that it has the discretion to exclude evidence depending on how it was obtained is debatable 7

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Noted developments in England: o Rajah J opined at [64] that if he were “unfettered by any authority, (he) would be persuaded that there will be particularly egregious instances of misconduct where the courts should reject evidence that has been procured in a manner that might be inimically repellent to the integrity of the administration of justice. This will protect those who should not be convicted contrary to the public’s sense of justice. In seeking to cut evidential Gordian knots, the ends cannot be inevitably and invariably held to justify the means. To do so can only result in indelible scars to the administration and perception of justice. Public confidence in the principled administration of justice must inevitably be the paramount consideration.’ At [65]: should different approaches be taken in private entrapment and state entrapment? o HC said that in principle, no. o The consequences of entrapment are the same whether or not the state is involved, citing Ashworth for the view that ‘[w]e should surely not welcome a society in which private investigators and journalists are free to employ deception on whatever scale, and in whatever circumstances, they please’. However, held that the DC was right to admit the evidence of the secret tapes: o The ruling in SM Summit ‘applies only in respect of prior illegal conduct (and not mere ethical impropriety) undertaken by an agent provocateur’; it does not apply to ‘mere ethical impropriety’. The only hope for Rayney was to bring the case under the new exception under SM Summit because the PI’s conduct was not illegal o On the facts of the case, A was not instigated or coaxed by Jenny into agreeing to pay the referral fee à the operative cause of his payment of the referral fee was not that he was led to believe that the transaction was real (?), but because he was predisposed or ready & willing to pay for any referral work à no entrapment CA: Chan CJ Relationship between entrapment & illegally/improperly obtained evidence: o Entrapment is a much narrower category o At [27]: It involves luring or instigating A to commit an offence which otherwise, in ordinary circumstances, he would not have committed, in order to prosecute him o Invariably entails unlawful conduct by an agent provocateur, in the form of abetment of an offence by instigation or intentionally aiding A to commit the offence o Looseley: § Per Lord Nicholls: state-directed entrapment is the process whereby ‘the state through its agents… lure[s] its citizens into committing acts forbidden by the law and then seek[s] to prosecute them for doing so.’ § Per Lord Hoffmann: ‘Entrapment occurs when an agent of the state – usually a law enforcement officer or a controlled informer – causes someone to commit an offence in order that he should be prosecuted.’ o Present case is not an entrapment case – PI had merely given J the opportunity to offer her a referral fee. She had not caused him to make the offer and subsequently pay the referral fee, he acted voluntarily and would have done the same thing if any other estate agent had approached him with a genuine offer of referral work § At [40]: PI’s conduct also not illegal à Summit doesn’t apply § Kuruma, Cheng Swee Tiang & Sang don’t apply here either – they stand for the principle that improperly obtained evidence is admissible unless it operates unfairly against A, unfairness in this context not regarding how the evidence was obtained but with its prejudicial effect § At [40]: At most, J’s conduct was in some loose sense unfair, however, CoA held that there is no principle stating that evidence that has been procured improperly or unfairly in order to prosecute offenders but which is not procured unlawfully is… inadmissible in evidence, except where there would be unfairness in terms 8

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of prejudicial effect exceeding probative value (limb 1 of Sang) Deferred discussion of evidentiary issues to Phyllis Tan

In Phyllis Tan, HC reviewed the law in this area, and concluded that the court has no discretion to categorically exclude illegally obtained but relevant evidence. This is because s 138 of the EA requires that the court admit all relevant evidence, and an exclusionary discretion is inconsistent with the EA, and cannot be given effect to by virtue of s 2(2).

Law Society of Singapore v Tan Guat Neo Phyllis Facts

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[2008] 2 SLR(R) 239

Instructing solicitors hired a PI to obtain evidence that Respondent’s firm had been engaging in touting convenyancing work o PI firm engaged Jenny Lee to run the operation – she represented herself as a real estate agent who may want to engage the respondent in her purchase of property o Recorded their phone conversation on audio recording and made a video recording of that meeting o Jenny then made a complaint with LawSoc in connection with Phyllis Tan’s offer to pay a referral fee for procuring convenyancing work It’s not clear – so is there probative/prejudicial? Because if you take the EA stuff to logical conclusion then there should be no discretion at all. Court held that it did not have to decide this question of law since: o PI did not act illegally, and her conduct did not amount to entrapment o Following Rayney Wong, the law of entrapment does not apply in disciplinary proceedings, as primacy must be given to the need to uphold ethical standards of the legal profession o So the views in Phyllis are all dicta, but there is a strong bench and CoA in Rayney referred to Phyllis Court offered the following views: o [1] Court has no discretion to exclude illegally obtained evidence (including entrapment evidence) by reason of the provisions of the EA; § However, the court also took the view that Sang is consistent with the EA o [2] Prosecution founded on entrapment evidence is not an abuse of process; o [3] The court may not stay a prosecution even of it is an abuse of prosecutorial discretion because of the separation of powers under the Constitution; and o [4] The court has, in an appropriate case, the power within its own judicial sphere to declare a prosecution unconstitutional for breach of constitutional power (which, in the case of the prosecutorial power, would have to be a very exceptional case given that it is a constitutional power) or for infringement of constitutional rights and protections, e.g. if P prosecutes A but condones police conduct by not prosecuting the police officers Criticism of the Summit test: At [113]: Firstly, every case of entrapment involves a preceding offence (abetment) which brings about a subsequent offence (the charged offence) o However, not all preceding breaches of law by law enforcement agents amount to an abuse of process o It is, in final analysis, a question of balancing the gravity of the preceding offence & that of the subsequent offence Secondly, by rejecting the balancing approach to determine which competing public interest should prevail in the circumstances of each case, Summit rests solely on its own facts o The approach would mean that however trivial the preceding unlawful act may be in comparison with the charged offence, the evidence thereby procured of the commission of the charged offence is just inadmissible o Even though criminal conduct spans a large number & spectrum of offences in terms of 9

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both harm to society & culpability, which would make it undesirable & inappropriate to treat all preceding illegal conduct as sufficient to exclude the evidence thereby obtained o In fact, focusing solely on unlawful conduct w/o reference to its nature or seriousness & ignoring the gravity of the charged offence fails to give sufficient weight to the public interest in convicting the guilty. o The very existence of competing or conflicting public interests requires the court to choose whether, in a particular case, one interest outweighs the other Court opined that if a test in SG is necessary to determine whether or not entrapment or illegally obtained evidence should be excluded, the appropriate test is a balancing test taking account the Ridgeway and Looseley factors o Ridgeway § (a) Whether there was a deliberate disregard of the law; § (b) The cogency of the evidence where the illegality was not deliberate; § (c) [The] ease with which the law might have been complied with in procuring the evidence in question; § (d) The nature of the offence; § (e) The policy of Parliament as appears from the enactment of the statute constituting the offence o Looseley § (a) Causing and providing an opportunity for the commission of the offence; § (b) Reasonable suspicion of crime and proper supervision of crime detection activities; § (c) The nature of the offence; § (d) The defendant’s predisposition to commit the offence; and § (e) Active and passive conduct on the part of law enforcement officers.

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Entrapment Evidence & the EA

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Starting point is that if a fact is relevant, evidence to establish that fact is admissible. The court is given no discretion to exclude evidence which establishes a relevant fact, but is bound to admit the evidence (s 138 of the EA) o Entrapment evidence is therefore admissible under the EA to prove that Df committed the charged offence and the court has no discretion to exclude o Next question – whether local case law has dealt with entrapment or illegally obtained evidence in a way consistent with the EA However, the court also took the view that Sang is consistent with the EA. Cited How Poh Sun which applied the Sang principle without any qualification – illegally obtained evidence is not to be excluded merely because it was illegally obtained, it can only be excluded if its prejudicial effect outweighed its probative effect o At [126]: CoA opined that Ambrose J in Cheng Swee Tiang was correct in pointing out that there was no such exception in our EA in relation to entrapment evidence o In any event, fairness exception doesn’t have any effect on entrapment evidence – by definition, the probative value is greater than prejudicial value in proving guilt of A (I mean its basically the whole offence) o At [126]: The exception is not for entrapment evidence, but for illegally obtained evidence where prejudicial value > probative value (Sang), which is in accordance with the letter & spirit of EA, and therefore applicable in SG o Summit is therefore inconsistent with the EA on the holding that the court has the power to exclude the PI’s evidence on the ground that PI’s illegal conduct preceded & was designed to bring about the charged offence At [127]: May also be pertinent to note that under EA, the only kind of incriminating evidence that is expressly denied admissibility is admissions & confessions made involuntarily by A to a person

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in authority (s 24) o Even a confession obtained in consequence of a deception practiced on A or when he was drunk is similarly relevant & admissible (s 29) § Relevant evidence in s 29 may be unfair to A, but are admissible because of their probative value § This is the overarching principle of the EA, and insofar as Cheng Swee Tiang recognises a discretion to exclude relevant evidence on the ground of unfairness to A, such a proposition is not entirely consonant with the provisions of the EA Vikram’s Evaluation of Phyllis

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According to some parts of Phyllis Tan, judges do not have any such discretion. o

However, Phyllis Tan mentions that Sang is consistent with the EA. This is troubling because the Sang discretion is broader than the admissibility provisions in the EA. §

For example, the second limb of Sang permits a judge to exclude evidence obtained from the accused after the commission of the offence if it is analogous to an admission or confession obtained involuntarily. S. 24 of the EA, in contrast, only applies a test of voluntariness to confessions (and not admissions not amounting to confessions).

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So insofar as Phyllis Tan has considered that Sang is consistent with the EA, courts still have some discretion.

It should be noted also that Phyllis Tan has highlighted the existence of a non-evidential route to

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preventing misconduct. Phyllis Tan has affirmed that the court has the power of judicial review over the Public Prosecutor’s powers. If the PP exercises his prosecutorial powers in bad faith or in a manner that infringes the Df’s constitutional liberties (such as art 12), the court may review the PP’s actions. This means that if the PP prosecutes the Df and fails to prosecute police officers who acted illegally in procuring the evidence, the court may review the PP’s actions. •

However, the CoA in Kadar noted that Phyllis had accepted the key holding in Sang, that the court has the discretion to exclude any evidence that had more prejudicial effect than probative value, was consistent with the EA and s 2(2)

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CoA in Kadar also further justified the basis of this exclusionary discretion on the basis of: o

1) Common law precedents, where such a discretion has previously been exercised in cases including Dahalan and Kong Weng Chong, (at [54]-[55]);

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2) Based on principle, because the reliability of a statement whereby its prejudicial effect exceeds its probative value would be questionable, and that probative value is the touchstone of admissibility under the CPC (at [55]); and

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3) Based on parliamentary intent, which the CA interpreted to mean that this area of judicial discretion is left for the courts.

Muhammad bin Kadar v PP [2011] 3 SLR 1205 Facts

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1ST App (Muhammad) & his brother, the 2nd App (Ismil) were charged with the murder of V in HC à received more than 110 incised & stab wounds and died from severe blood loss o Ismil was arrested on the day of the killing for an unrelated offence, but was later interrogated in connection with the killing o Before recording the 1st statement, SSI Zainal told the two officers accompanying 2A in a police car to leave so that he could interview him alone § During interview, 2A allegedly confessed to killing V alone § Made the same confession (allegedly) in his 2nd statement § No warning was administered before either recording, neither statement read back to him, and he was not given the opportunity to make corrections or 11

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sign either statement At [42]: Statements recorded by the police from As can be classified into two categories: o Long statements – under s 22 of the CPC 2010, police have the power to examine any person & reduce their statement into writing as a power of investigation that they may exercise in investigating a seizable offence § S 22 prescribes certain formal requirements for taking long statements, but does not state the consequences of non-compliance with these requirements o Cautioned statements – under s 23 of the CPC, in response to a notice in writing that is required pursuant to s 23, a statement is given once a person is informed that he may be prosecuted for an offence, or is charged for an offence § Notice informs A that if there is any fact that he wishes to rely on in his defence he should state it as doing so at trial for the first time may render it less likely to be believed o Statements are admissible pursuant to (s 258(1) – s 258(3)) of the CPC At [44]: voluntary statements from A would be admissible under s 258(1) – s 258(3) even if procedural requirements set out s 22 & 23 are not met o E.g. in Sathiadew, where court held that a breach of the signature requirement of s 22 would not render a statement inadmissible under s 258, but would only affect the weight of the statement by casting doubt on whether it was actually made o E.g. Tsang Yuk Chung, where a failure to follow the notice procedure of s 23 did not render a statement inadmissible under s 258(3), but would affect the adverse inferences that could be drawn under s 261(1) from a failure to state defence upon being cautioned At [45]: Therefore, procedural breaches of s 22 & 23 themselves would not render a statement inadmissible, so it stands that breaches of PGO that relate to the recording of statements would also not themselves render statements inadmissible under s 258(3) o Cited Rajendran J in Dahalan, when he held that he did have a discretion to refuse to admit A’s statement under s 258(1) of the CPC even if voluntarily made without ITP § Based on the fact that s 258(1) made statements “admissible” w/o mandating that they be “admitted” § He then exercised this discretion to exclude the statement even though he had already made findings that the statement was inadmissible due to being involuntarily given, which obviated any need to consider the general discretion to exclude voluntary statements – found that A had been suffering severe effects of heroin & erimin consumption, such as to make his statement involuntary, applying the standard set in Garnam Singh o However, Rajendran J acknowledged that mere non-compliance with s 121 o PGO would not automatically result in inadmissibility, but in this case, the violations were “flagrant”, and P had no reasonable explanation for such violations At [53], on summary of cases of Phyllis Tan and Rayney Wong, Court held that it was “clear that a common law discretion to exclude voluntary statements that would otherwise be admissible exists where the prejudicial effect of the evidence exceeds its probative value.” à this is the exclusionary discretion the court has, and this is what Rajendran J applied in Dahalan, considering his focus on the effect that conditions such as the drugs, the lack of necessary language interpretation, and the destruction of the original record of the statement that made it “unsafe” to admit o Explanation at [55]: where prejudicial effect exceeds probative value, the very reliability of the statement sought to be admitted is questionable o This is an area of judicial discretion that Parliament has left the courts, as seen in the wording of s 258(1) (cited Dahalan) in approval o Additionally, it is clear in the CPC that probative value is the crucial factor vis-à-vis admissibility or non-admissibility of statements under the CPC, this is already the settled position of the EA – per Phyllis Tan, at EA s 29, even a confession obtained in consequence of deception practiced on A or when he is drunk is similarly relevant & 12

•

•

admissible, which may be said to be unfair to A. However, this kind of evidence is admissible because of their probative value. This is the overarching principle of the EA. At [56]: procedural irregularities may be a cause of finding that a statement’s prejudicial effect outweighs probative value o Cannot be denied that the rules prescribed by the CPC for recording statements and the PGOs exist to provide a safeguard as to reliability o When fully complied with, PGOs thus help ensure that statements are reliably recorded o Therefore follows that a serious breach of procedural rules (whether CPC or PGO rules) renders the statements less reliable § In our system, A is entitled, as a constitutional right, access to counsel, but the entitlement doesn’t extend to immediate access (Jasbir Singh) § Even after A engages counsel, there is no legal rule requiring the police to let counsel be present during subsequent interviews while investigations are carried out à in fact, court can draw AI if A insists on remaining silent at interview on the ground that he wishes to take legal advice before answering the question (Yap Terence) § Therefore, its plain that the law offers the police great freedom & latitude to exercise their comprehensive & potent powers of interrogation in the course of investigations à evidential reliability of the written statements therefore rest greatly on the conscientiousness with which the police investigators conducting the examination & recording observe the prescribed safeguards (at [57]) o Also appears to be the case that written statements are given more weight c/f other types of evidence because as formal statements taken by the police, they have an aura of reliability that comes from their being taken under a set of strict procedures strictly observed by a trustworthy officer well-trained in investigation techniques § Aura is further enhanced by the admissibility requirement that the recording officer must be of the rank of sergeant or higher à statutorily assumed that such senior officers are competent and will discharge obligations conscientiously o In essence, the public policy is in favour of trusting the integrity f the police, which gives them certain freedom to conduct their investigations more effectively & efficiently, which does come with inherent risks § At [59]: e.g. an officer which may not go as far as to ITP a statement, but may record the statement with “embellishments”, and if the suspect doesn’t get to read or sign the statement, then there’s no assurance that the statement faithfully reflects what he disclosed § Or e.g. a statement taken by an indolent officer who only records it well after the examination, and fills in the gaps based on his own views of suspect’s guilt § The only safeguards standing in the way of such situations are the salutary requirements of the CPC and PGO, especially those requiring statements to be promptly reduced to writing, immediately read back to the maker, corrected in necessary, and signed à these safeguards ensure that the uncompromising need for accuracy and reliability for such statements is met, considering the statements are likely to be tendered as evidence before a court - if prejudice >probative value, court should not be slow to exclude statements At [61]: therefore if the court is looking to admit a statement recorded in breach of CPC and/or PGO, it bears the burden of establishing that probative value > prejudicial effect o Burden discharged by giving a reasonable explanation for why probative value > prejudicial effect o So a statement such as Dahalan, where violation was “flagrant” generally requires a more cogent explanation to discharge the burden, c/f cases where irregularities are merely careless or arising from an operational necessity § Because the bona fides of an officer who deliberately breaches the requirements, 13

or knowingly disregards them would “necessarily be more questionable” § Also, such conduct should not be encouraged (!!!) – court should be wary when accepting explanations of ignorance of correct procedures § But really it’s a case-to-case thing à evaluate the probative value & prejudicial effect in each scenario At same time, CoA at [65] also cautioned D against burdening the court with unmeritorious technical defences – only serious irregularities, which are those that materially affect the evidential value of a voluntary statement, will suffice to cause the court to exercise exclusionary discretion o Sathiadew – statement was read back to A, but recording officer failed to obtain his signature à omission generally did not impact probative value of statement o Tsang Yuk Chung – police officer failed to give notice stated in s 23 -> prejudicial effect in this case was low, since the statement didn’t damage A’s case o Mazlan – court failed to inform suspect of his right against self-incrimination under s 22(2) à did not have prejudicial value o Foong Seow Ngui – officer failed to indicate at the end of the statement that the statement had been read to A and A was offered opportunity to mae corrections à did not have prejudicial value, because the mere absence of such a clause doesn’t affect admissibility if the requirements (reading + opportunity) were fulfilled o Fung Yuk Shing – found that officer had taken own A’s statement but didn’t show it to him or let him sign. Pocket book was admitted as evidence, but not the original piece of paper the statement was taken on. However, the court found the officer to be a credible witness on xx, so prejudicial effect of evidence not high o In fact, at [66]: the failure to inform A of caution under s 23 or s 22(2) may affect what A chooses to say, but not the reliability of what he actually says – this shouldn’t form the grounds of exclusion without anything else At [68]: Court cautioned against the exclusionary discretion being used to discipline the wrongful behaviour of police officers o Important to distinguish an evidential discretion from a disciplinary function (cited Sang and Mazlan) o Court should also refrain from excluding evidence based only on facts indicating evidence was obtained in an unfair manner (citing Phyllis Tan and Rayney Wong) o That said, a vigilant emphasis on procedural requirements on recording statements can have a +ve effect on quality of such evidence generally – court should also make clear that non-compliance with such procedures weakens Prosecution’s case, and hopes to remove the incentive for officers not to comply

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B. Application (for Prosecution) •

P may wish to argue that Kadar is restricted to its facts, and the Sang discretion should only be applicable to statements made under s 22 & 23 of the CPC. o

Therefore, there is no discretion to exclude illegally obtained evidence in the present case.

o

Furthermore, even if the discretion is applicable, the probative value of (the illegally obtained evidence) will outweigh its prejudicial effect

•

Application o

This is because the illegally obtained evidence – as with the present case – clearly demonstrates the accused’s mens rea and actus reus and thus has very high probative value, whereas its prejudicial effect to the accused at trial is close to none. §

Unless it’s a statement taken under s 22 & 23: E.g. in cases like Kadar, the prejudicial effect arises from the aura of reliability police statements have because there are 14

rigorous standards in place that the police must abide by when taking a statement, thereby safeguarding the process. In cases of procedural irregularity, prejudice arises because too much weight may be placed on the statement despite the irregularity o

Additionally considerations of pre-trial process would also be contrary to the separation of powers (Lord Scarman in Sang)

o

Thus, the Kadar/Sang discretion even if applicable would not be successful in the present case

C. Application (for X) •

While P may argue that Kadar is restricted to its facts, and that Limb 1 of the Sang discretion is only applicable to statements made under s 22 & 23 of the CPC. However, X can argue that Kadar was instead reading Phyllis as affirming Sang in its broad proposition, that under Limb 1, courts have a general discretion to exclude evidence if its prejudicial effect outweighs its probative value. Thus, the Kadar/Sang discretion is also applicable to illegally obtained evidence.

•

However, on the issue of whether the probative value of (evidence) outweighs its prejudicial effect, the court in Phyllis noted that the probative value in illegally obtained evidence will always outweigh its prejudicial effect. On the facts of the case…

3. EVIDENCE OBTAINED THROUGH ENTRAPMENT •

Since (evidence) was obtained through luring or instigating A to commit an offence which otherwise, in ordinary circumstances, he would not have committed, in order to prosecute him and which entails unlawful conduct by an agent provocateur, in the form of abetment of an offence by instigation or intentionally aiding A to commit the offence (Rayney at [27]), the evidence was obtained via entrapment o

•

Would not apply to disciplinary proceedings (Rayney, Phyllis)

Therefore the issue is whether the court has the discretion to exclude such evidecnce

A. Law •

Based on the weight of the authorities of Sang, Summit, Phyllis and Kadar, there is no discretion to exclude evidence on the grounds that it has been obtained via entrapment, as that would be tantamount to recognising entrapment as a substantive defence at criminal law, which does not exist o

Rayney at HC has also clarified that there is no distinction in principle between state-directed & private entrapment §

At [65]: no different approaches for private entrapment and state entrapment. The consequences of entrapment are the same whether or not the state is involved, citing Ashworth for the view that ‘[w]e should surely not welcome a society in which private investigators and journalists are free to employ deception on whatever scale, and in whatever circumstances, they please’.

o

As such, the only discretion that exists is the Sang discretion which Kadar noted that Phyllis had accepted, that the court has the discretion to exclude any evidence that had more prejudicial effect than probative value. §

Per CoA in Kadar, the court refrains from excluding evidence based only on facts indicating unfairness in the way the evidence was obtained, as opposed to unfairness in the sense of contributing to a wrong outcome at trial, since the court is more concerned with the reliability of the evidence (at [68]) 15

o

While the antiquated HC case of Cheng Swee Tian did suggest that the court may exclude illegally obtained evidence if its admissibility would ‘operate unfairly against A’, on analysis of whether the interest of A to be protected from illegal invasions of his liberties by the authorities should outweigh the interest of the state so as to ensure that the interest of the state in to secure that evidence bearing upon the commission of the crime, the discretion is problematic because:

o

§

How this balance between state & individual interests should be struck;

§

What the scope of ‘operate unfairly’ entails;

§

What is the basis of the incorporation of this discretion into the EA

Therefore, Cheng Swee Tian’s test arguably should not be accepted by modern courts

B. Application •

There is no discretion to exclude evidence on the grounds that it has been obtained via entrapment, as that would be tantamount to recognising entrapment as a substantive defence at criminal law, which does not exist. o

As seen in Kadar, the court refrains from excluding evidence based only on facts indicating unfairness in the way the evidence was obtained, as opposed to unfairness in the sense of contributing to a wrong outcome at trial, since the court is more concerned with the reliability of the evidence (at [68])

•

Therefore, the issue is whether the evidence can be excluded on the basis that it was illegally obtained…

4. IMPROPERLY OBTAINED EVIDENCE (PROCEDURAL IRREGULARITIES) •

On the facts of the case, the s 22/s 23 statement did not comply with procedural requirements because_____________________.

•

As such, two issues arise: o

Does the non-compliance make the statements inadmissible under s 258?

o

If not, does the court nevertheless have the discretion to exclude such procedurally-flawed evidence

A. Issue 1: Admissibility •

On the first issue, a mere non-compliance with CPC/PGO procedure does not render the statement inadmissible if its satisfies the voluntariness requirement in s 258(3) of the CPC (Kadar at [45]). This is also set out in Explanation 2(e) of s 258(3) o

See previous muggers on voluntariness test.

B. Issue 2: Discretion to Exclude •

Per the CoA in Kadar, CoA held that the court has a residual discretion to exclude statements where the prejudicial effect of the evidence exceeds the probative value at trial (affirming the holding in Phyllis Tan at [53]) o

Procedural irregularities may be a cause of finding that a statement’s prejudicial effect outweighs probative value (Phyllis Tan at [56])

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o

Therefore, courts may apply its exclusionary discretion where statements were recorded in breach of procedural requirements such as those in s 121(3) (now s 22) or the relevant PGOS.

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However, only serious irregularities materially affecting the reliability of the voluntary statement will trigger the court’s discretion (Kadar at [65]) o

The burden is on P to explain the procedural non-compliance and to show that the statements nonetheless have sufficient probative value (Kadar at [147])

o

Statements taken in deliberate or reckless non-compliance in relation to procedural requirements will generally require a more cogent explanation from P to dischared this burden, as compared to where the irregularities are merely careless, or arising from a pressing operational necessity (Kadar at [62]

• Cases •

Sathiadew – statement was read back to A, but recording officer failed to obtain his signature à omission generally did not impact probative value of statement

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Tsang Yuk Chung – police officer failed to give notice stated in s 23 -> prejudicial effect in this case was low, since the statement didn’t damage A’s case

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Mazlan – court failed to inform suspect of his right against self-incrimination under s 22(2) à did not have prejudicial value

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Foong Seow Ngui – officer failed to indicate at the end of the statement that the statement had been read to A and A was offered opportunity to mae corrections à did not have prejudicial value, because the mere absence of such a clause doesn’t affect admissibility if the requirements (reading + opportunity) were fulfilled

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Fung Yuk Shing – found that officer had taken own A’s statement but didn’t show it to him or let him sign. Pocket book was admitted as evidence, but not the original piece of paper the statement was taken on. However, the court found the officer to be a credible witness on xx, so prejudicial effect of evidence not high

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c/f Kadar o

Breach of s 22 statement procedure (not read back to him, not signed)

o

Breach of Police General Order (wrote on piece of paper, entered into diary only after lunch)

o

Major Discrepancy between original recording and field diary entry (substituted the word “stabbed” for “slash”)

o •

CA held that irregularity serious enough to compromise reliability in a material way. PV < PE.

c/f Dahalan o

Court considered that the combination of the powerful effects of drugs on A’s mind, the lack of necessary language interpretation, and the destruction of the original record of the statement coupled with Sgt Lai’s unreliability as a witness, made the evidence ‘unsafe’ to be admitted

o

Kadar interpreted Dahalan as a case where ‘flagrant’ violations of the procedure combined with the effect of drugs on A caused the statement to have a greater prejudicial effect than probative value.

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c/f Kong Weng Chong o

Court focused on the poor probative value of the accused’s statement in light of the facts surrounding its recording, such as the fact that the statement was not reduced into writing until about five weeks after it was made and that important details had been left out of the statement in question, and excluded it.

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PP v Dahalan bin Ladaewa [1995] 2 SLR(R) 124 (upheld on appeal [1995] SGCA 87) Facts

/held/

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A and his accomplice was charged with trafficking in more than 15g of diamorphine One Sgt Lai was tasked with interviewing them and recording their answers in his pocket book o However, he merely jotted their answers down on a piece of paper before writing out an expanded version of the contents in his pocket book § Sgt Lai told the court that he interviewed A in English, and that A could understand English, so he did not ask A whether he wished to speak Malay § Sgt Lai also claimed that he jotted down what A said in note form on the paper, and before he left the station that evening, wrote an expanded account of what he noted in his pocket book, and then destroyed the piece of paper § Agreed during the first voir dire that he knew the interview was an important assignment since A would face the death penalty, but in spite of this knowledge, failed to record a proper statement from A, have it read back to him, and then have A signed it, or at least note the statement in his pocket book • Claimed that this was because he was “in the vicinity just prior to the interview”, and did not take the trouble of going to the office to get his pocket book because plainclothes officers were not expected to carry pocket books around • Left the pocket book in his office drawer, and would make entries only when he was free o P subsequently sought to adduce evidence of the conversation between Sgt Lai & A à wanted to admit the contents of the pocketbook as evidence § Sgt Lai recorded that A said he “intended” to sell the “sachets of powdery substance” for $150 a sachet Court found it difficult to believe Sgt Lai’s claims as to how pocket books were to be entered o While it may be acceptable not to take notes at all, or just jot down notes on paper where an officer is on surveillance duty, court doubted that this was accepted practice for a formal interview with A, and that it was also accepted practice to destroy the notes after transcribing the contents into his pocket book o In fact, this is clearly not what the Police General orders (PGO) are – obligatory to keep pocket books on them at all time § Also directed to make entries in the pocket book whenever possible at the time of occurrence, and any notes made on pieces of paper had to be copied in the pocket book ASAP, with the original retained as an exhibit in case of need (O4) § Where occurrences recorded were likely to be subject of legal proceedings, should be recorded in fullest possible detail, including “actual words of relevant statements” (O7) § Where pocket book is used to record statement, must be done in compliance with s 121(3) (now s 22) of CPC o When confronted with these provisions, Sgt Lai admitted that he knew of these provisions, but failed to follow them because he had forgotten about them Court also did not believe that A used the word “intended” o Sgt Lai insisted he did, but changed his mind during questioning and testified that A had in fact said he “wanted” to sell the drugs, and he was just not careful when he made that record in the pocket book o Agreed with the court that he changed his testimony when he realised that A didn’t know enough English to have used the word “intended” At [26]: Court opined that on the words of s 258(1), where it appeared that there was an ITP, the court is obliged to reject the statement, it has no discretion to admit the statement o However, in situations not covered by s 258(1), a discretion to admit evidence could be said to exist because the provision reads that a statement made an accused person “shall be admissible”, not “shall be admitted” 18

Court opined that on plain construction, the provision reads that where the proviso does not apply (i.e. where the statement is voluntary), the court is “vested with a discretion to admit or reject such statements” At [79]: On the facts of the case, Sgt Lai had had ample time to read the statement back to A and ask A to confirm its accuracy, and get A to sign it, as per s 22 o However, he flagrantly disregarded the provisions of s 22 and the provisions of the PGO o He had also “expanded” what was said by A and used words that were not uttered by A – like “intended” and “sachets of powdery substance o While P relied on the case of Fung Yuk Shing to argue that disregard of the PGO and s 22 are irrelevant considerations to the admissibility of a statement, curt disagreed à the case doesn’t stand for the position that the police have carte blanche to ignore s 22 and the directions carefully spelt out in the PGO on keeping pocket books. o All that the case says is that on the facts of hat case, TJ cannot be faulted for admitting the statement as TJ was satisfied, in spite of the irregularities present, the officer was a credible witness, and the entries in his pocket book were honest & accurate On the facts of the case, this dude clearly isn’t o He asserted that he wasn’t required to have his pocket book with him or required to transcribe his notes from the statement in the pocket book, which were blatant untruths o Only admitted that he was aware of the PGO’s contents when confronted with the PGO o Should have complied with s 22 and read back A’s statement, had him sign it – there was also clearly no need to transcribe and then destroy the piece of paper (?) While it is settled law by now that an oral statement would not be rendered inadmissible merely because of a non-compliance with the mandatory provisions of s 22 (citing Mazlan at [84]), there is good reason why the legislature in s 22 spelt out the manner in which statements are meant to be recorded, and why the Commissioner of Police specified in lucid detail the manner in which pocket books are to be kept o The fact that s 258(1) provides that oral statements are admissible in evidence should not be treated as licence for the police to ignore the PGO and s 22 and render these safeguards meaningless o In this case, considering how flagrant the violations of these provisions are, it is incumbent on P to either offer some reasonable explanation for the violation or desist from attempting to adduce statements taken in disregard of these provisions as evidence before the court o While its fair to say that Sgt Lai probably didn’t, at the time of the interview, consider that P would adduce this evidence at trial, its important for a prosecutor to consider carefully the circumstances under which a statement was made, and only seek to adduce the statement as evidence if the circumstances warrant so. o

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Lim Thian Lai v PP [2006] 1 SLR(R) 319 Facts

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/held/

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A was charged with murder of V by shooting him in the back of the head o A made a number of statements to the police while he was in custody o Argued that the statements were given involuntarily and inadmissible because he was threatened & induced into making the statements o Also argued that they had failed to issue a warning to him under s 121 (now s 22), and that he had poor command of the English language At [17], cited TJ’s judgment with approval: o Settled law that A’s statement will not be rendered inadmissible on the basis that s 121 has not been literally adhered to 19

o

S 121 does not address the issue of admissibility of statements made in the course of police investigations à purely imposes an obligation on the person questioned to tell the truth subject to the proviso permitting him to maintain his silence on matters that may be personally incriminating

PP v Tan Kiam Peng [2007] 1 SLR(R) 522 at [44], [45] (appeal dismissed in Tan Kiam Peng v Public Prosecutor [2008] 1 SLR(R) 1) Facts

• •

/held/

•

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A was placed under arrest at the Woodlands checkpoint when he attempted to import ten packets which contained 145g of heroin One of his grounds of argument was that there were several procedural irregularities in respect of statements purportedly taken by investigating officers – disputed that he ever acknowledged that he was carrying heroin At [44], cited Vasavan: o A failure to sign a statement does not support the inference that the inspector was lying and that A made no statement at all o Once A becomes an accused person, the statement is admissible, whether or not it was recorded, whether or not it was read back, as long as it was voluntary At [45]:Acknowledged that a failure to follow procedural safeguards explicitly articulated in s 121 (s 22) may in some circumstances diminish in the court’s eyes the veracity or accuracy of the statement purportedly made by A o Cited Halsbury: While admissibility of evidence is unaffected by breach of procedure, the weight of the evidence may be affected by the increased risk of insincerity, embellishment and indoctrination occasioned by the breach. Ex hypothesi, the fact that the person being interrogated was not informed about the purposes of the investigations cannot affect admissibility but the weight of any statement made may be diminished if the person interrogated was speaking at cross-purposes as a result of confusion or misunderstanding as to the purport of the inter

C. Concluding Paragraph

• Where there was minimal procedural irregularity •

On the facts of the case the (procedural irregularity) arguably did not materially affect the reliability of the statements because … o

Kadar at [65] cautioned defence against burdening the court with unmeritorious technical defences – only serious irregularities, which are those that materially affect the evidential value of a voluntary statement, will suffice to cause the court to exercise exclusionary discretion

o

The court is similarly unlikely to find prejudicial effect outweighs the probative value in this case. On the facts of the case…

•

However, procedural irregularity may diminish the weigh accorded to the admitted statement due to the increased risk of insincerity, embellishment and indoctrination occasioned by the breach for procedure (Halsbury, cited by Tan Kiam Peng at [45]). This in turn would diminish the weight of any inferences drawn from the statement, adverse or otherwise.

• Where severe procedural irregularity •

On the facts of the case the (procedural irregularity) arguably materially affected the reliability of the statements because…. 20

•

As a result, the statement should be excluded as its prejudicial effect outweighs its probative value since…

5. ILLEGALLY OBTAINED EVIDENCE IN A CIVIL CONTEXT •

Here, the (IOE) was obtained improperly via (method).

•

In the present case, the law of confidence will likely/unlikely apply to restrain Pf from adducing the aforementioned evidence

•

In the alternative, there is an inherent discretion in the context of civil proceedings stemming from the same power exercised in Kadar o

This was acknowledged in ANB at [90], where the court acknowledged that different societal and policy reasons as well as arguments may apply vis-à-vis the inherent discretion of the court to exclude evidence as between criminal and civil proceedings While the discussion regarding discretion is dicta in ANB, the HC decision nevertheless stated its position concerning principles governing the courts discretion to exclude evidence in civil proceedings, and CoA considered it necessary to respond with “tentative” observations: Per ANB(CA), a balance must be struck between the evidence’s significance to issues at trial (i.e. probative value) and its impact on the fairness of the trial, legal entitlements of party against whom evidence is sought to be adduced (e.g. rights in confidential info), conduct of the parties, and importantly, the interests of the administration of justice (particularly whether the degree of impropriety in the method the evidence is obtained is such that admitting it compromises integrity of the judicial process) § Prejudicial > probative may not be entirely appropriate here, because the concerns are different, and the options for the parties are also different § In fact, Pinsler suggests that fairness in a civil context =/= prejudice in a criminal contact • Fairness is any consideration affecting the court’s ability to try a case justly – e.g. if a party tries to introduce evidence at a late stage of the proceedings • Should be considered along with other countervailing factors – alleged improprieties of the wife in infringing the husband’s proprietary rights over his computer and confidentiality right over his info, or whether the evidence could be obtained through the regular discovery, and whether, as the wife alleged, the evidence proved that the husband was falsifying info If court decides not exercise discretion à must then look at what sanction to impose on the taker of the evidence for the improper manner in which the evidence was obtained and his failure to engage ordinary rules of procedure § Possible that cost orders reflect the court’s disapproval of such conduct because the interests of the administration of justice must include both fair adjudication and a deterrence of improper conduct of parties while conducting litigation §

o

o

• Cases ANB v ANC [2015] 5 SLR 522 (especially [27] onwards) Facts

•

Husband alleged that wife, who had left the matrimonial home, had returned to the padlocked premises while he was overseas, removed, and improperly hacked his computer o He also claims that she then engaged a PI to make copies of the files in his hard drive and passed the files to her legal representatives to use in divorce proceedings o Husband therefore took action for breach of confidence & applied for an ex parte interim injunction preventing her from using the info improperly accessed from his computer 21

/held/

•

•

•

HC at [51]: principles governing the discretion to exclude evidence in criminal proceedings apply in civil cases, but would not be exercised in most civil cases (rather, the mechanism of weight attribution would be engaged) o Because the presumption of innocence is paramount in a criminal trial and the court should be wary of evidence that may taint the outcome of proceedings o However, in civil proceedings, the prejudicial effect assumes a far lighter weight & role when put in the balance against probative value CoA disagreed on this point – does not necessarily mean that exclusionary discretion would be exercised with less rigidity such that most evidence would not be excluded in civil proceedings: o May be the case that the probative/prejudicial balancing exercise cannot apply to civil proceedings, and a different balancing exercise should be conducted o Phyllis and Kadar are cases concerning propriety of the conduct of PIs and Police Officers, different from cases such as ANB, which concerned the propriety of wife’s conduct and protection of husband’s proprietary rights, and whether protecting them is in public interest o Phyllis and Kadar are cases where the evidence could not be attained any other way à in this case, the wife could have just sought discovery Therefore Phang JA opined that civil cases have different countervailing factors – e.g. the need to protect potential proprietary interests & public interest in promoting the obtaining of evidence by way of legally prescribed methods

• •

Per ANB(HC) at [51]: principles governing the discretion to exclude evidence in criminal proceedings apply in civil cases, however, the court acknowledged that such a discretion would not be exercised in most civil cases (rather, the mechanism of weight attribution would be engaged) Because the presumption of innocence is paramount in a criminal trial and the court should be wary of evidence that may taint the outcome of proceedings o However, in civil proceedings, the prejudicial effect assumes a far lighter weight & role when put in the balance against probative value CoA disagreed on this point – does not necessarily mean that exclusionary discretion would be o

•

exercised with less rigidity such that most evidence would not be excluded in civil proceedings: o

o

May be the case that the probative/prejudicial balancing exercise cannot apply to civil proceedings, and a different balancing exercise should be conducted § Phyllis and Kadar are cases concerning propriety of the conduct of PIs and Police Officers, different from cases such as ANB, which concerned the propriety of wife’s conduct and protection of husband’s proprietary rights, and whether protecting them is in public interest § Phyllis and Kadar are cases where the evidence could not be attained any other way à in this case, the wife could have just sought discovery § Therefore Phang JA opined that civil cases have different countervailing factors – e.g. the need to protect potential proprietary interests & public interest in promoting the obtaining of evidence by way of legally prescribed methods Principles for civil cases? § Since the exclusionary discretion stems from the court’s inherent power to prevent injustice & abuse of process, primary concern of the court is maintaining the integrity of its system of adjudication

6. READINGS

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(Non-Justice) Pinsler It is settled that there is a judicially developed discretion to exclude admissible evidence in criminal cases if the probative value of the evidence is outweighed by its prejudicial effect at trial (Kadar) o In Kadar, although the statements were admissible under the CPC, the circumstances in which they were recorded by the police & other incidents rendered them unreliable o CoA concluded that HC ought to have exercised its discretion & excluded the statements on the basis that their prejudicial effect outweighed their probative value à characterised this power to reject otherwise admissible evidence as an exclusionary discretion based on the CL (Sang), and court also referred to its inherent power to prevent injustice o More significantly, if we look at Kadar, COA didn’t consider themselves as developing a new law, but felt they were applying the principle as endorsed in Phyllis Tan, despite the cases between Phyllis and Kadar that regarded Phyllis as rejecting the notion of a discretion to exclude evidence in the face of the omission of such a principle in the EA o Pinsler thinks it depends on how you read Phyllis à its possible to even argue that Chan CJ was merely saying that Sang is consistent with the EA because evidence obtained by entrapment would always be more probative than prejudicial o Especially considering Chan CJ’s judgment apparently favoured Australian & English cases which developed a separate balancing test for determining how to respondent to improperly obtained evidence (regardless of the effect of impropriety on the reliability of the evidence at trial) o Impression given by Chan CJ is that if he had decided that he could exercise a power to exclude evidence independently & unrestricted by the EA, he might have applied the balancing test as was seen in Ridgeway and Looseley § Approach involves the balancing if two competing interests of the administration of justice: • [1] Judicial access to all relevant evidence; and • [2] Rejection of relevant evidence which has been obtained in a manner which compromises the integrity of the judicial process § If Concern [2] > [1], court may exclude the evidence after taking all germane factors into account Really there is sufficient authority already to mount the argument that the court does have a discretion to exclude evidence when the manner in which it has been obtained compromises the integrity of the administration of justice o Argument is made on the basis of Chan CJ’s “inclination” towards Ridgeway and Looseley, and the acknowledgement by the CoA in Kadar of a discretion to exclude evidence that is independent of the EA, as well as the observations by CoA in ANB Similarly at the 2nd Reading of the Evidence (Amendment) Bill in 2012, the Minister of Law stated that the court has a general power to exclude improperly obtained evidence pursuant to its “inherent jurisdiction”, and did not make any distinction between criminal & civil cases ANB o With regard to civil cases, there is now apparently no doubt that the manner in which a party obtains evidence may be a significant factor taken into account by the court to determine whether it should exercise its discretion to exclude o Addressed in ANB v ANC à case on the law of breach of confidence, but HC decision nevertheless stated its position concerning principles governing the courts discretion to exclude evidence in civil proceedings, and CoA considered it necessary to respond with “tentative” observations until a full & final judicial pronouncement could be made § HC at [51]: principles governing the discretion to exclude evidence in criminal proceedings apply in civil cases, but would not be exercised in most civil cases (rather, the mechanism of weight attribution would be engaged) • Because the presumption of innocence is paramount in a criminal trial and the court should be war of evidence that may taint the outcome of proceedings • However, in civil proceedings, the prejudicial effect assumes a far lighter weight 23

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& role when put in the balance against probative value § CoA disagreed on this point – does not necessarily mean that exclusionary discretion would be exercised with less rigidity such that most evidence would not be excluded in civil proceedings: • May be the case that the probative/prejudicial balancing exercise cannot apply to civil proceedings, and a different balancing exercise should be conducted • Phyllis and Kadar are cases concerning propriety of the conduct of PIs and Police Officers, different from cases such as ANB, which concerned the propriety of wife’s conduct and protection of husband’s proprietary rights, and whether protecting them is in public interest • Phyllis and Kadar are cases where the evidence could not be attained any other way à in this case, the wife could have just sought discovery § Therefore Phang JA opined that civil cases have different countervailing factors – e.g. the need to protect potential proprietary interests & public interest in promoting the obtaining of evidence by way of legally prescribed methods Principles for civil cases? § Since the exclusionary discretion stems from the court’s inherent power to prevent injustice & abuse of process, primary concern of the court is maintaining the integrity of its system of adjudication § Balance therefore between its significance to issues at trial (i.e. probative value) and its impact on the fairness of the trial, legal entitlements of party against whom evidence is sought to be adduced (e.g. rights in confidential info), conduct of the parties, and importantly, the interests of the administration of justice (particularly whether the degree of impropriety in the method the evidence is obtained is such that admitting it compromises integrity of the judicial process) § Prejudicial > probative may not be entirely appropriate here, because the concerns are different, and the options for the parties are also different § In fact, Pinsler suggests that fairness in a civil context =/= prejudice in a criminal contact • Fairness is any consideration affecting the court’s ability to try a case justly – e.g. if a party tries to introduce evidence at a late stage of the proceedings § Should be considered along with other countervailing factors – alleged improprieties of the wife in infringing the husband’s proprietary rights over his computer and confidentiality right over his info, or whether the evidence could be obtained through the regular discovery, and whether, as the wife alleged, the evidence proved that the husband was falsifying info § If court decides not exercise discretion à must then look at what sanction to impose on the wife for her improper manner in which the evidence was obtained and her failure to engage ordinary rules of procedure • Possible that cost orders reflect the court’s disapproval of such conduct because the interests of the administration of justice must include both fair adjudication and a deterrence of improper conduct of parties while conducting litigation •

Implications in the criminal sphere In ANB, it was acknowledged that there is an inherent discretion in the context of civil proceedings stemming from the same power exercised in Kadar o At 90: Different societal and policy reasons as well as arguments may apply vis-à-vis the inherent discretion of the court to exclude evidence as between criminal and civil proceedings o This can be construed as justifying an overall inherent discretion that may be exercised by a court in accordance to appropriate principles applicable to the varying considerations in criminal & civil cases o Main concern in ANB is the effect of the manner of obtaining evidence on rule of law – no 24

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reason why the fundamental rule that one who lives in a civilized society must abide by the rule of law should exist in civil, and not criminal cases § C/f in Phyllis, Chan CJ’s holding that there is no discretion to exclude evidence obtained by entrapment because probative value > prejudicial effect doesn’t take into account the integrity of the administration of justice § E.g. A case where X is enticed to come to SG for a short holiday from his native Malaysia to a gathering of his owl friends, and is offered a gift of a packet of diamorphine by one friend à X fails to dispose of it, and is charged with possession • This wouldn’t be excluded according to Phyllis even though the conduct of the authorities is arguably more harmful to public interest than X’s possession Argument has been made that Kadar is concerned with the reliability of the statement, and endorsed the prejudicial effect/probative value test in relation to the reliability of evidence at trial, and the case itself doesn’t prohibit the wider application of the test to the manner of obtaining evidence, regardless of its effect at trial (who cares if its reliable we have STANDARDS) § Rajah JA in Rayney similarly opined that if he had not been “unfettered by any authority, [he] would [have been] persuaded that there will be particularly egregious instances of misconduct where the courts should reject evidence that has been procured in a manner that might be inimically repellent to the integrity of the administration of justice”. § However, probative/prejudicial test is not a helpful standard to apply when our only concern is the manner the evidence was obtained However, in Phyllis, Chan CJ clearly opined that the courts have no discretion to exclude illegally obtained evidence on the provisions of the EA § And also cited Ridgeway, a case where the illegal actions of the Australian Federal Police caused A to commit offence of importing prohibited drugs – conduct of the police constituted a “vital element” of the offence since the heroin was imported unlawfully by a Malaysian officer as part of an operation involving “controlled importation” and delivery for purpose of arresting A in Australia • HC had to balance the following public interests – whether in the circumstances of the case, public policy considerations favoured exclusion of the evidence of A’s offence (namely the public interest in maintaining the integrity of the courts & ensuring observance of the law and minimum standards of propriety observed by those entrusted with the powers of law enforcement) and outweighed the obvious public interest in conviction & punishment • Excluded the evidence – where the illegal police conduct was actually itself the principal offence to which the charged offence is ancillary, or when the police conduct constitutes an essential ingredient of the charged offence, the police illegality & the threat to the rule of law which it involves assumes a particularly malignant aspect § Looseley was a case where an undercover police instigated A to supply him heroin, and then applied for stay of proceedings on the argument that a prosecution based on entrapment evidence is an abuse of process Clear from Chan CJ that not every instance of police impropriety justifies an exclusion – at [65], this is just one factor which is brought into balance § At [68] cited Hoffmann in Looseley – once the court considers the unlawful police conduct as having crossed the line into the sphere of impropriety & unacceptability constituting “an affront to the conscience of the public” court must act by staying proceedings c/f Ridgeway, which responded by excluding the evidence since it found a stay inappropriate in view of the separation of powers in Australia’s constitutional system, and also that invoking a court’s jurisdiction to try an offender for an offence is precisely what the process is intended for § Chan CJ at [112] agreed with the HC at Ridgeway and also observed that the factors 25

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referred to in both Ridgeway and Looseley would be appropriate for a SG court to take into account if a balancing test is applied The standing of Summit – criticised in Phyllis for its factual findings, reasoning, legal conclusions o Yong CJ in Summit drew a distinction between cases where police conduct has merely induced A to commit the offence which he has committed, and a case where illegal police conduct itself constitutes an essential element of the charged offence § In situation [1] – public interest in conviction & punishment of A is likely to prevail over other considerations, and the exclusion of evidence would in fact undermine judicial integrity in allowing the acquittal of a guilty person § In [2] – the illegality & threat to the rile of law which it involves assume a particularly malignant aspect, and the integrity of the administration of criminal justice would require such evidence to be excluded o Yong CJ rejected the balancing tests – could not be applied, and the “disciplinary” approach which Yong CJ considered to have been engaged in Ridgeway could not be justified – his approach was simply to consider the preceding unlawful conduct of the PI, w/o any reference to the charged offence § This would exclude all entrapment evidence – every case of entrapment involves a preceding offence (abetment) which brings about a subsequent offence (charged offence), but it cannot be the case that all preceding breaches of law render the evidence procured of the commission of the charged offence inadmissible (at [113]) o Pinsler argues that it may be said that Chan CJ’s observations in Phyllis provides a basis for the court to exclude improperly obtained evidence if the balancing test is tilted in favour of the administration of justice § So its not the case that the discretion is exercised simply because the police acted unlawfully in procuring evidence § Must be based on the administration of justice – balance the gravity of police’s offence & the subsequent offence that A is charged with § Overall consideration is whether the conduct of the law enforcement officer was “so seriously improper as to bring the administration of justice into disrepute” (at [47]) • Law applies equally to all – should not take into account whether officer was a police officer or a PI • Phyllis > Summit – more recent, comprehensive, intended to definitively declare principles governing the discretion to exclude evidence (even if just dicta), subsequent cases of Kadar & ANB regard Phyllis as primary authority Violet Thread There is a thread of authorities that justify a discretion to exclude admissible evidence irrespective of probative value procured in a manner so offensive to the integrity of the administration of justice that it should not be relied upon o Kadar arguably is concerned with unfairness resulting from admission of unreliable statements at trial, but the judgment doesn’t close the door to the exclusion of evidence in circumstances warranted by the interests of “administration of justice” o This was also supported by the Minister of Law – the court has an inherent jurisdiction to exclude evidence, and it is for the courts to determine how to exercise it o ANB as well emphasised the importance of the court’s inherent discretion to protect legal rights & preserve the authority of legal infrastructure in a civilized society according to the Rule of Law o Cheng opined that it was undisputed law that there is a judicial discretion to exclude relevant evidence if the reception “would operate unfairly against A”, taking into account “the interest of the individual to be protected from illegal invasions of his liberties by the authorities [and] the interest of the state to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done” § Cheng was criticised for being inconsistent with the EA in Phyllis, but its citation in Chan Chi Pun as the governing authority regarding the principles governing the 26

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discretion to exclude evidence has not been doubted o Rayney at [64]: [T]here will be particularly egregious instances of misconduct where the courts should reject evidence that has been procured in a manner that might be inimically repellent to the integrity of the administration of justice. This will protect those who should not be convicted contrary to the public’s sense of justice.” o Kadar strongly opines that the failure of law enforcement officers to meet the standards required of them hinders the interests of the administration of justice o In ANB, CoA indicates that a court may need to exercise its discretion “more robustly, or at least more vigorously” than the HC contemplated because of the variety of countervailing factors which may arise and the need to protect potential proprietary interests, and the public interest in promoting legitimacy in the method of obtaining evidence Pinsler therefore thinks that it should be possible to revisit Ridgeway and Loosely, and formulate a new balancing test that takes into account the interests of A judged on the basis of reliability (as per Kadar) as well as the interests of the administration of justice where evidence has been obtained in a manner that offends integrity of the judicial process.

Prof TYL’s arguments: Sing a Song of Sang •

TYL argues that the EA provides for a “built-in” discretion: ss. 14, 15 and 9. o

Sections 14 and 15, which are provisions concerned with the admissibility of SFE, seem to require “particular relevancy” and not general relevancy. This may be seen from the words “is in issue or relevant” in s 14 and the words “When there is a question” in s. 15. §

These words suggest that the judge has some discretion in assessing whether the SFE is sufficiently relevant or sufficiently “in question” for it to be admissible.

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S. 9, which is concerned with facts necessary to explain or introduce relevant facts, also allows for flexibility in its use of the words “which support or rebut an inference” and “insofar as they are necessary for that purpose”. The words “support or rebut” and “inference” are sufficiently ambiguous to give the judge discretion in considering when evidence would be admissible under s. 9.

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TYL’s reading is sustainable. Unfortunately, no court has adopted TYL’s suggestion.

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