Confessions (Nigel, Phoebe, Si Ying).pptx

7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx

1/95

CONFESSIONS

Nigel Yeo, Phoebe Sim, Goh Si Ying


2/95

Possible grounds of appeal

1. Statement in the police car

2. Statements given in the police station

3. Statements given in the Remand Prison

Law Reform1. Removing the confessions regime from the EA and CPC

2. Codifying the default adherence to s 258 CPC in determining

admissibility for criminal confessions (not in judgement)

3. Replacing the voluntariness principle in s 258 CPC with a direct

reliability formulation4. Enacting provisions for the regulation of police procedure

a. Guidelines as to the ambit of police powers

b. Video recording of police interrogations

c. Presence of legal counsel

Overview


3/95

Q1. The Public Prosecutor requests a

memorandum from you advising him on

whether there are good grounds of appeal.


4/95

1. Statement given in the police car

Accuseds Testimony

Taken soon after his arrest In a p ol ice caron the way from his home to the police station

Recordedby the accom panying Sergeant

in hisnotebook

Was not read over to accused Was not signed by accus ed Explanation was that Sergeant was n ot exper iencedand had forgot ten

to do i t


5/95

Lawless J held that the cases cited by the prosecution, which seem to

have decided that compliance with the provisions in the CPC empoweringthe statement to be recorded was unnecessary for admissibility, were

plainly absurd if they stood for that proposition. If this proposition were

true, it would make a mockery of the statutory language in CPC s 22 - the

words of a statute must not be taken to have been used in vain.

He stated that in any event, the SGCA decision in Kadaris clearauthoritythat such breaches ought to be viewed with extreme suspicion by the

court and ought presumptively to be excluded unless the police is able to

explain themselves to [his] satisfaction.

Lawless J was clearly not convinced by the Prosecutions explanation that

the Sergeant was not very experienced and had simply forgotten to do it.

He therefore exercise[d] his discretion and exclude[d] the statement.

Decision of Lawless J


6/95

1. That procedural impropriety (breach of recording procedures)

does not render statements of confession inadmissible

a) The courts have no discretion to exclude statements

tainted with procedural irregularity



7/95

(1) Procedural impropriety (breach of recording procedures) does not

render statements of confession inadmissible

The law

Section 22(3) of the Criminal Procedure Code 2010 (CPC) provides that a

statement made by any person examined under that section must (a) be in

writing; (b) be read over to him; (c) if he does not understand English,be interpreted for him in a language that he understands; and (d) bes igned by h im

However, Explanation 2(e) to s 258(3) of the CPC provides that an

otherwise admissible statement will not be rendered inadmissible merely

because it was made where the recording officer of an accuseds

statement, recorded under s 22, did not fully comply with that section.

Furthermore, CPC s 423(a) provides that the courts judgment may not be

reversed or altered on account of any procedural irregularities unless the

irregularity has caused a failure of justice.



8/95



General rule indicated by provisions and case law

Starting point: s 22(3) CPC provides certain procedural requirements to be

met in recording statements

Failure to meet them does not in itself render the statement

inadmissible

Affirmed in Muhammad bin Kadar v PPat [44]

V K Rajah: as a general rule, voluntary statements from an accused

person recorded by a police sergeant would be admissible evenif the procedural requirements set out in ss 121 [now ss 22 CPC]

are not met.

Thus Lawless J was wrong to say that such statements ought presumptively to

be excluded unless the police can satisfactorily explain themselves



9/95



Vasavan Sathiadew v PP[1992] SGCA 26 (affirmed in Kadar)

A breach of the signature requirement in s 121(3) [now s 22(3) CPC]

would not render a statement inadmissible, but only affect the weightto be attached to the statement by casting doubt on whether it was

actually made (assumably one of the cases cited by prosecution)

However, the CPC provisions and case law do not proh ib i ta court from

excluding statements that have been tainted by the presence of procedural

irregularities - they merely provide that such statements are not inthemselvesinadmissible.

The question is therefore under what circumstances can such statements

be excluded by the court.



10/95



Procedural irregularities may be a cause for a finding that a statements

prejudicial effect outweighs its probative value (Kadarat [56], citing

Halsburys Laws of Singapore vol 10at para 120.138).

Thus, it is 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 (Kadarat [53]).



11/95



This discretion (the exclusionary discretion) has been exercised

repeatedly throughout case law such as in PP v Dahalan bin Ladaewa

[1995] 2 SLR(R) 123, Sathiadew, and PP v Syed Abdul Aziz[1992] SGHC

197).

Despite this exclusionary discretion, the court in Kadarwas careful to

clarify at [67] that an appellate court would not alter the decision of the trial

court unless the improper exercise (or omission to exercise) of the

exclusionary discretion occasioned a miscarriage of justice, in line with s423(c) CPC.



12/95



The courts have no discretion to exclude statements tainted with

procedural irregularity

In Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2SLR(R) 239, the High Court observed [at 126] that the principle that

the court had a discretion to exclude evidence only on the ground

that it was obtained in ways unfair to the accused was incompatible

with the Evidence Act.



13/95



The courts have no discretion to exclude statements tainted with

procedural irregularity

However, the High Court further held [at 126] that the holding in R v Sang[1980] AC 402 to the effect that there is a discretion to exclude any

evidence that had more prejudicial effect than probative value, which was

consistent with the EA and in accordance with the letter and spirit of s

2(2), and is therefore applicable in the Singapore context.

Jeffrey Pinsler SC also regarded this discretion as not only approved in

Phyllis Tan, but as arising from an inherent jurisdiction of the court to

prevent injustice at trial (Evidence and the Litigation Process, LexisNexis,

3rd Ed, 2010, at paras 10.20 and 10.24)



14/95



Conclusion

Position in Singapore is that the courts should take a firm approach in

considering its exercise of the exclusionary discretion, and should not be

slow to exclude statements on the basis that the breach of the relevantprovisions in the CPC has caused the prejudicial effect of the statement

to outweigh its probative value (Kadarat [60]).

The Prosecution bears the burden of establishing that the PV of a

statement recorded in breach of the CPC > its PE.

Burden can be discharged by offering some reasonable explanation

for any procedural irregularities.

Statements taken in deliberate or reckless non-compliance will require

more cogent explanation as compared to where the irregularities are

merely careless or arising from operational necessity.



15/95




Conclusion

Supported by Parliament

Minister for Law K Shanmugam in Parliament on 19 May 2010 (when

asked about Explanation 2 to s 258(3) CPC) Mere technical flaws will not render the statements obtained

inadmissible if as a result of improper questioning or recording, the

accused contends the statement is not his, or that the statement is not

voluntarily.

Those are contentions that the Courts will test in deciding issues

of admissibility and weight.


16/95

This case contains similar procedural irregularities as that in Kadar- the

accuseds statement there was also i) taken in a police car; ii) not readback to him; iii) and not signed by him - on top of that, he was not given the

opportunity to correct the statement.

While the CA in Kadardecided that the statement was obtained in

deliberate non-compliance with the procedural requirements of [now s

22(3) of the CPC], rather than mere carelessness or operational necessity,the same conclusion cannot be reached as easily here.

1) The recording officer in Kadarwas a Senior Station Inspector (SSI), a

seasoned investigator with some 28 years of experience - here, he was a

Sergeant.

2) There were manifest irregularities [147] that took place during the alleged

recording of the statement in Kadar: the SSI had initially recorded the

accuseds statement on a slip of paper then transferred it onto his field

diary much later on [143], and there was a major discrepancy between the

contents of the slip of paper, and the field diary entry made based on the

contents of the paper [146]. These are not present here.

Application to the facts


17/95

In light of the lack of further evidence regarding the circumstances

surrounding the recording of the statement, it is possible that the

Prosecution may be able to argue that the procedural requirements

occurred out of mere carelessness.

There were no flagrant violation of the CPC procedural provisions

as was the case in Dahalan where the recording officer i) claimed

that he was not expected to carry his pocket book; ii) did not bother

to go up to his office and take his pocket book; iii) claimed to have

forgotten about the Police General Orders when confronted about

his lapses in procedure.



18/95


19/95

Accused was subject to intensive interrogation and given little rest.

Accused testified that:

He was told repeatedly to give a good statement

His request for a lawyer was turned down

His request to be allowed to rest was denied

His request for food and drink succeeded only once

His request to adjust the temperature was ignored

His interrogators testified that these were all lies.

2. Statements given in the police station


20/95

Lawless J held that the prosecution had not discharged its

burden of proof: I simply cannot say that it is more probable thannot that the police are telling the truth and the accused lying.

Therefore, he found that the statements given in the police station

were infected with reasonable doubt of there being some sort of

inducement, threat or promise, either express or implied.



21/95

(1) The prosecution had discharged its burden of proving that

the alleged utterances were never made.

(2) Even if the court finds that the alleged utterances were

made, there was no inducement, threat or promise rendering

the statements involuntary.



22/95

(1) The prosecution had discharged its burden of proving that the alleged

utterances were never made.

Beyond reasonable doubt

It is the prosecutions duty to prove beyond reasonable doubt that

the statements made by the appellant were voluntary.

It does so by removing reasonable doubt of the existence of

the inducement, threat or promise, and not every lurking

shadow of influence or remnants of fear: Panya Martmontree v

PP.



23/95



In Ismail bin Abdul Rahman, the Court of Appeal stated that a

corollary to this duty is the responsibility of the prosecution to

ensure that the persons who the accused claimed induced or

threatened him are available as witnesses to show these

contentions to be untrue:

Forinstance to give a detailed account of how the interrogation

was conducted, including the times of interrogation, the length or

the periods of interrogation and how the accused was treated.



24/95



Case ofIsmail b in Ab dul Rahman v PP

In that case, the prosecution witnesses consistently maintained that

none of the alleged utterances were ever made to the appellant

during the course of police investigations, and the appellant had

been fully co-operative with the police throughout.

The Court of Appeal accepted that the prosecution had discharged

its burden.

It stated that this was afinding of fact based on an assessment

ofwitnesses credibility.



25/95



Presumption of police credibility

In Kadar (CA) the court stated that public policy is in favour of

trusting the integrity of the police.

Such public policy considerations underpin the courts approach

towards proof of voluntariness:

If the burden of proof resting on the prosecution is to be taken

seriously, many statements would be excluded this may be thought

to be unduly detrimental to the public interest in the conviction of the

guilty. (M Hor, The Confessions Regime in Singapore)

The result is that our courts apply a presumption of police

credibility.



26/95




In this case, the team of 6 investigators who had interrogated the

accused were present at trial to testify as to their version of events.

They were able to give sufficient details of the interrogation and nodiscrepancies had arisen from their testimonies.

Following Ismail bin Abdul Rahman, this is sufficient for the

prosecution to discharge its burden of proving that the alleged


Lawless J therefore erred in holding that the prosecution had failed

to discharge its burden of proof.



27/95

(2) Even if the court finds that the alleged utterances were made, there

was no inducement, threat or promise rendering the statements

involuntary.

Test of voluntariness

The test of voluntariness is partly objective and partly subjective.

The objective limb is satisfied if there is a threat, inducement orpromise, and the subjective limb when the threat, inducement or

promise operates on the mind of the particular accused through

hope of escape or fear of punishment connected with the charge:

Kadar (HC).



28/95



involuntary.

Whether there was ITP?

The accused testified that he was told repeatedly that if he did not

give a good statement he would be interrogated for as long aswas necessary for him to breakdown and tell the truth.

While utterances like you had better tell the truth have previously

been treated as necessarily establishing a threat or an inducement

(Lim Kim Tjok v PP), the current view is that the import of suchwords should be approached in a common sense way and in the

context of the individual case (Chai Chien Wei Kelvin v PP).



29/95



involuntary.

Osman bin Din v PP

The appellant was allegedly told that if he admitted to the offence,

he would receive a lighter sentence. He was also warned to tell thetruth, otherwise he would be beaten up and sent to the gallows.

The Court of Appeal held that even if the allegation were true, the

utterances did not amount to a threat or inducement in the

circumstances.

The court was of the view that the utterances were insufficient to

give the appellant any reasonable groundsfor supposing that

he would gain any advantage or avoid any evil of a temporal

nature by giving the statements.



30/95



involuntary.

Not all forms of intimidation are inducements, threats or

promises within s 258(3) of the CPC 2010.

Thus, in Yeo See How v PP, the Court of Appeal stated: there isno necessity for interrogators to remove all discomfort. Some

discomfort has to be expected the issue is whether such

discomfort is of such a great extent that it causes the making

of an involuntary statement.



31/95



involuntary.


Applying Osman bin Din v PP, the utterance in the present case

was insufficient to give the accused reasonable grounds forsupposing that he would gain any advantage or avoid any evil of a

temporal nature by giving the statements.



32/95



involuntary.

Whether a self-perceived inducement can amount to inducement?

In Chai Chien Wei Kelvin v PP, the Court of Appeal held that a self-

perceived inducement cannot in law amount to aninducement.

Lawless J, in completely disregarding the principle ofstare decisis,

opined that it should not matter how the inducement, threat or

promise occurred in the mind of the accused, so long as it wasthere the voluntariness rule is based on reliability and if an

externally-induced threat or promise is thought to result in

unreliable confessions, the same reasoning must apply to internally

perceived threats and promises.



33/95



involuntary.

It is submitted that the position taken by the Court of Appeal in Chai

Chien Wei Kelvin v PPis correct.

To hold that a self-perceived inducement can amount to

inducement is to disregard the objective limb of the voluntariness

test.

In effect, the police would be required to avoid making inducements

which objectively cannot be perceived. This is unrealistic and would

impose far too onerous a burden on the police.

A balance must be struck between ensuring reliability and the

public interest in the conviction of the guilty.



34/95



involuntary.

Whether there was oppression?

Oppression relates to the methods and manner of interrogation

preparatory to and during the making of statements oppressivequestioning may be described as questioning which by its nature

duration or other attendant circumstances, including the fact of

custody, excites hopes, such as the hope of release, or fears, or so

affects the mind of the person being interrogated that his will

crumbles and he speaks when otherwise he would have remainedsilent questioning in circumstances which tended to sap and did

sap, the free will of the person interrogated: per Edmund Davis LJ

in R v Prager, accepted by the Court of Appeal in Seow Choon

Meng v PP.



35/95



involuntary.

How to reconcile oppression with the voluntariness principle?

The court in PP v Law Say Teckheld that oppression is a form of

implied ITP. What is implied is that the bad treatment will stop if thesuspect confesses.



36/95



involuntary.

Test for oppression

Mere discomfort is insufficient to constitute oppression. It is not

enough that at the material time the accused was tired, hungry,thirsty and under great stress. The question is whether he was in

such a state that he had no will to resist making any statement

which he did not wish to make (PP v Tan Boon Tat).



37/95



involuntary.

Application to facts

The accused was not in such a state that his will might have been

completely overborne.

Fung Yuk Shing accused had been without food or drink for 7

hours. Court held that there was no oppression: [not] every failure

to offer an accused sustenance constitutes a threat orinducement.

Tan Boon Tat accused had not been given any food or drink for 9hours. The court accepted that he was at the material time tired,

hungry, thirsty, and under great stress. Nonetheless it was held that

there was no oppression.



38/95

Accuseds testimony

Took place a week af ter h is interrogat ion at the pol ice stat ion

In th e Remand Prison

2 policemen questioned the accused on certain details of the original

charge

The police desired more detailed statements to get a clearer picture

One of the police officers told the accused that he had bet ter come

clean completely, or he wo uld certa in ly h ang

Accused produced a 5-page confession filling in many details of the

circumstances under which he committed the crime

This included in form at ion as to wh ere an art ic le used in the cr imewas hidd en away

As the 2 policemen arrived at the place concerned, they saw th at 2

passersby had already fou nd th e itemand were standing there

discuss ing who might h ave left i t there

3. Statements given in the Remand Prison


39/95

Lawless J stated that the authorities [were] very clear such

shady behaviour by the police [would] normally result in the

exclusion of statements obtained thereby.

Lawless J held that what the police told the accused was clearly a

threat, inducement or promise which would render the statement

involuntary.

Lawless J also stated that even if the archaic theory of

confirmation by subsequent discovery applied, the discovery in

this case was clearly not in consequence of the confession.



40/95

The statement should not have been excluded because it was made

voluntarily:

(1) The authorities referred to by Lawless J - Azman- can be

distinguished and hence the circumstances in which the

statement was obtained do not indicate the existence of a ITP

(2) Although the words of the officer to the accused amounted

to a ITP, they did not operate on the mind of the accused...

In the alternative, the statement should not have been excluded even if

it made involuntarily:

(3) The theory of confirmation by subsequent discovery is

applicable and the discovery was made in consequence of the

confession.



41/95

(1) The authorities referred to by Lawless J (Azman) can be distinguished

from the present case

Lawless J is presumably referring toAzman since the facts here, at

first glance, appear to bear a resemblance to the facts inAzman



42/95



Azman b in Mohamed Sanwan v PP

Facts

The officer visited the accused at Remand Prison purportedly to serveon him the ecstasy charge, which stemmed from the same events that

led to his arrest.

The officers visit to the accused took place in the absence of the

accuseds counsel.

This was known to the officer.

The officer was accompanied by an interpreter.



43/95




Facts

According to the officer, after he served the charge on the accusedand recorded the accuseds cautioned statement, the accused

voluntarily offered in English to provide him with certain information

which, despite the officers request, the accused steadfastly refused to

be reduced into a written statement.

All this happened in the presence of the interpreter, who gaveevidence corroborating this version of the facts.

The officer then recorded in his field book a summary of the

information given by the accused.

It was these statements that were sought to be adduced.



44/95




Holding

The Court of Appeal held that the Prosecution had not discharged itsburden. It was not convinced beyond reasonable doubt that the

statement was obtained without any ITP, because there were justtoo

many gaps in the Prosecutions evidence.

1) The statement was obtained by the officer several months after theaccused was arrested.

The timing of these statements invites keen scrutiny, given that

the accused had unequivocally and consistently denied his guilt

right from the date of his arrest.



45/95




Holding

2) The Prosecutions explanation that the officer was going to serve theecstasy charge was unsatisfactory.

a) The charge at that time was fairly tentative and ambulatory.

There was a real likelihood that the service of the ecstasy chargeso late in time could have been a pretext by which the officer was

trying to gain access to the accused, without the knowledge of the

accuseds counsel.



46/95




Holding

2) The Prosecutions explanation that the officer was going to serve theecstasy charge was unsatisfactory.

b) The charge, served at such a late stage, also did not seem

necessary (it was a non-capital charge).

Ordinarily, when an accused faces a capital charge, the

Prosecution will not proceed with lesser charges at the trial

common-sense practice in view of the irreversible nature of a

conviction on a capital charge



47/95




Holding

3) Information about an accomplice was raised in the statement but nosteps had been taken by the police or CNB against the accomplice.

This defied logic and suggests that the accused might not have

given the statement in the bland manner recounted by the officer.



48/95



Only similarity in our case:

The policemen also visited the accused at Remand Prison, but

not for the specific purpose of questioning the accused with

respect to the original charge.

They did so in connection with an entirely separate matter, but

ended up obtaining information with respect to the original

charge.



49/95



However,Azman can be distinguished.

Time: The statement was obtained a week after the accused

was arrested.

It is entirely plausible in our case that the investigationswere still ongoing and had not yet been concluded.

Reason for visit:

In Azman, the ecstasy charge stemmed from the same

events that led to the accuseds arrest.

In our case, the policemen sought to question the accused

in connection with an entirely separate matter.



50/95



However,Azman can be distinguished.

How the statement was obtained:

In Azman, the officer claimed that the accused voluntarily

offered (on his own initiative) to provide the statement afterhe was served with the ecstasy charge.

In our case, it is clear that the policemen took it upon

themselves to question the accused on the original charge.



51/95



Since it can be argued thatAzman is not applicable to the present

factual scenario, there is room for the Prosecution to argue that the

trialjudges conclusion was unfounded.

When viewed alone, the above circumstances in which the

statement was obtained do not necessarily indicate the existence ofa ITP.

Whether the existence of a ITP can be found on the facts would

then depend on the Prosecutions ability to prove beyond a

reasonable doubt that the statement made by the accused was

voluntary.



52/95



Means by which the Prosecution can prove BARD

By providing a satisfactory explanation as to:

(i) Why the policemen needed to question the accused about the

entirely separate matter and

(ii) Why they decided to question the accused about the original

charge while they were there (Azman).

It would also be helpful if the Prosecution could produce the 2

policemen in court as witnesses to show that the accuseds allegations

of ITP are untrue. To give a detailed account of how the interrogation was

conducted: Times of interrogation, length or periods of

interrogation and how the accused was treated (Ismail).



53/95

(2) The ITP did not operate on the mind of the accused

One of the police officers told the accused that he had better comeclean completely, or he would certainly hang.

Looking at the words in a common sense way and in the context of

the case (approach in Chai Chien Weiand Osman), it is clear that

the words had better come clean completely were not meant to bean innocent exhortation to tell the truth like that in Ismail.



54/95


Instead, the factual scenario here is similar to Poh Kay Keong(Wont get hanged. You give me a good statement.).

The police officers words can clearly be construed as a promise of

leniency to the accused (he would be able to escape the

punishment of hanging if he confesses), and hence amounts to anITP.

However, there is room for the Prosecution to argue that even

though the objective limb in Kadar in satisfied (clear ITP), the

subjective limb in Kadarhas not been made out.

I.e. The threat, inducement or promise did not actually operate on

the mind of the accused through hope of escape or fear of

punishment connected with the charge.



55/95


Osman:

Accused alleged that he was told that if he admitted to the

offence, he would receive a lighter sentence

The accused was also warned to tell the truth, otherwise he

would be beaten up and sent to the gallows The Court held that the alleged ITP was not sufficient to give

the appellant any reasonable grounds for supposing that he

would gain any advantage or avoid any evil of a temporary

nature by giving the statements.

Osman can be distinguished.

The Courts decision was largely influenced by its belief that

the accused was lying and that there were no such threats or

inducements.


P ibl d f l


56/95


Whether the Prosecution can prove that the ITP did not actuallyoperate on the mind of the accused would depend on the following

(insufficient facts):

Whether the accused actually believed that the police would

carry out the ITP

Lim Thian Lai:

Court held that the part objective and subjective test in

determining voluntariness was not satisfied because

the accused had repeatedly asserted that he

mistrusted all police officers Would also depend on the nature of the offence that the

accused was charged with committing and the severity of

the consequences of conviction


P ibl d f l


57/95


Whether the Prosecution can prove that the ITP did not actuallyoperate on the mind of the accused would depend on the following

(insufficient facts):

The characteristics of the accused

Lim Thian Lai: The [accused] can hardly be described as a babe in

the woods who might easily succumb to fear or

intimidation. He is an experienced street operator used

to the rough and tumble of life.

[It] was not his first encounter with police officers and

he did not strike me as a man who could or would be

easily broken.


P ibl d f l


58/95

(3) The theory of confirmation by subsequent discovery is applicable and

the discovery was made in consequence of the accuseds confession.

Section 258(6)(c) of the CPC: Notwithstanding any other provision

in this section - when any fact or thing is discovered in

consequence of information received from a person accused

of any offence in the custody of any officer of a law

enforcement agency, so much of such informationas relatesdistinctly to the fact or thing thereby discovered may be

proved.


P ibl d f l


59/95



Chin Moi Moi (HC):

Before the section can be invoked, it is essential to prove that a

fact was discovered in consequence of the information

received from the accused.

The information must have been such as had caused

discovery of a fact, i.e. the fact must have been the

consequence and the information the cause of its

discovery.

If there was no link between the information and the factdiscovered, the information would not be admissible under

the section.


P ibl d f l


60/95



Chin Moi Moi:

Cited Pulukuri Kottaya v Emperor(PC):

It is fallacious to treat the fact discovered within the

section as equivalent to the object produced. The fact discovered embraces the place from which the

object is produced and the knowledge of the accused as to

this, and the information given must relate distinctly to this

fact.


P ibl d f l


61/95



Chin Moi Moi:

Cited Pulukuri Kottaya v Emperor(PC):

Example:

Information supplied by a person in custody that I willproduce a knife concealed in the roof of my house

does not lead to the discovery of a knife; knives were

discovered many years ago.

It leads to the discovery of the fact that a knife is

concealed in the house of the informant to hisknowledge, and if the knife is proved to have been

used in the commission of the offence, the fact

discovered is very relevant.




62/95



There is room for the Prosecution to argue that the trial judges

conclusion (that the discovery was not in consequence of the

confession and hence the theory of confirmation by subsequent

discovery did not apply) was unfounded because it was based on a

misunderstanding of the law.

Based on a reading ofChin Moi Moi, it is evident that the trial judge

has succumbed to a fallacy in his reasoning.

Lawless J equated the words factdiscovered in s.258(6)(c)

with the discovery of the knife (physical object).

He was also of the view that the discovery was not made in

consequence of the confession because the knife had been

found by 2 passersby no causation link.




63/95



The trialjudges conclusion cannot be right.

Applying Chin Moi Moi, the factdiscovered here is not that

the information supplied led to the discovery of a knife at the

area, but that the fact that a knife was in the area was part of

the accuseds knowledge.

Since the knife can be proved to have been used in the

commission of the offence, the fact discovered is relevant and

should be admissible.




64/95



The trialjudges conclusion cannot be right.

The causation link has not been broken by the chance

occurrence that 2 passersby happened to find the knife before

the police arrived at the scene.

Accepting such a result may possibly lead to injustice:

A patently guilty person is allowed to escape conviction

because otherwise reliable evidence under s. 258(6)(c) has

been excluded due to a technicality (besides the evidence

having been unlawfully obtained).




65/95



In addition, such a result may be in contradiction with one of the

possible rationales behind the voluntariness rule, besides reliability

(judicial integrity).

The failure of such evidence to be admitted on a technicality maycause the public to lose respect and confidence in the

administration of justice and may also increase the incidence of law

breaking in society.




66/95



It is submitted that the right position for the court to take would be

to rule that the fact discovered is admissible, provided that the

Prosecution is able to produce the 2 passersby in court as

witnesses.

This will ensure that the reliability rationale behind the theory ofconfirmation by subsequent discovery is protected.

Discovery of the knife by the 2 passersby will not be hearsay

since they will be in court to give evidence.

Also, there is no danger of information being falsely attributedto the accused if the 2 passersby can be proven to be

independent witnesses, who have no incentive whatsoever to

frame the accused.




67/95



Assuming that the 2 passersby are willing to appear in court to give

evidence on behalf of the Prosecution:

It is likely that the Prosecution will be able to prove that it was

only in consequence of the accuseds statement that officers

were dispatched to the area to search for the knife, and in sodoing, discovered the fact that the accused had knowledge that

a knife was in the area.

Hence, the discovered fact would be admissible even if the

statement which gave rise to its discovery was made involuntarily.



68/95

Q2. The Minister for Law asks you to

prepare a report on any matter raised in the

judgment which might possibly be thesubject of law reform, giving your opinion as

to whether any change in the law ought to be

considered.


69/95

1. Removing the confessions regime from the EA and

CPC

2. Codifying the default adherence to s 258 CPC in

determining admissibility for criminal confessions (not

in judgement)

3. Replacing the voluntariness principle in s 258 CPC

with a direct reliability formulation

4. Enacting provisions for the regulation of police

procedurea. Guidelines as to the ambit of police powers



Areas for Reform

(1) R i th f i i f th EA d CPC


70/95

The trial judge advocated this position

I wonder if life would not have been better for everyone if

we had never permitted the use of such statements, as

the drafters of our EA and CPC had originally intended.

The police would then have had to do some real police

work and find genuine evidence of guilt

Instead of focusing on guilt and innocence, we arefighting about who said or did what at the police station

(1) Removing the confessions regime from the EA and CPC



71/95

[Material taken from Michael Hor, The Confessions Regime in Singapore [1991] 3 Malayan Law

Journal lvii]

For

Where a suspect produces a confession after custodial interrogation, but the

accused denies its truth at trial and says he confessed only because he was

threatened - one solution is to admit the confession and allow the trier of fact to

assess its value, taking the accuseds explanation into account.

Judicial experience has been that this is not the wisest course to take in all

situations.

There is a significant possibility of prejudice - a confession is particularly damning,

and there is a fear that the trier of fact will overestimate the probative weight of aconfession.

Significant: a finding of guilt can be based on a mere confession.




72/95

[Material taken from Michael Hor, The Confessions Regime in Singapore [1991] 3 Malayan Law

Journal lvii]

For

The realities of police interrogation generate a pos sib i l i ty of unrel iable

confess ions which cannot be d iscounted.

Pressure, strain, isolation and intimidation (Miranda v Arizona)

Might of the State

Accusatorial police interrogation in order to obtain admissions, rather than

neutrally to elicit facts

The trier of fact may not be in the best position to appreciate the nature and realitiesof police interrogation and may be insufficiently aware of the dangers of relying on

such confessions.




73/95

Against

Excluding all confessions made to the police was the original position in our EA.

This was felt to have compromised the accurate determination of facts, and hence

the conviction of the guilty, to an unacceptable degree.

Then-Minister for Labour and Law, K M Byrne, in Parliament in 1959(Parliamentary Debates Singapore: Official Report, vol 11 (2 September 1959)

at col 556):

Police in SIngapore have complained for a long time that the results of their

work are restricted by the provisions which forbid statements recorded by

them, even if taken in compliance with the Judges Rules in England, which

provide safeguards against statements extorted by force or threats, to be givenin evidence in the Court

The English practice in this respect was followed in Hongkong and Sarawak

Experience in Hongkong showed that police investigators could learn, by

training and experience, the proper use of the Judges Rules, and that possible

abuse of such admissibility can be avoided


(1) Remo ing the confessions regime from the EA and CPC


74/95

Suggestions (?) for reform

Prof. Hor in lecture: A person who confesses his guilt is likely to be guilty - similar to

the concept of the hearsay exception allowing statements made against ones own

interests - higher probability of reliability.

A blanket exclusion of all confessions is likely to result in justice being done lessoften

Better to adopt the balanced approach advocated by Prof. Hor, i.e. custodial

confessions generally admissible, but excluded where the possibility of unreliability

reaches such a degree that PE > PV.

Reliability will be discussed later under the voluntariness rule.


(2) Codifying the default adherence to s 258 CPC in determining


75/95

]

S 21 of the EA provides that admissions may be proved as against the person who

makes them or his representative in interest, but not by or on behalf of these people

except in certain cases.

However, s 258(1) of the CPC provides for comprehensive plenary admissibility for

any statement made by a person charged with a criminal offence, whetheroral/writing, before/after he is charged, in the course of any investigation or not, etc.

In situations apart from when a person is charged with a criminal offence, it is clear

that s 21 EA will take effect (e.g. civil cases). However, when such a charge is

present, then technically both the EA and CPC are applicable.


admissibility for criminal confessions



76/95

The logic of EA s 21, i.e. universal admissibility of admissions against thedeclarant but limited admissibility in favour of the declarant, is that admissions made

in favour of the declarant (exculpatory statements) are self-serving and cannot be

admitted as the truth.

This was recognized in Chan Kin Choi v PP[1988] SGHC 96.

However, as pointed out by Prof. Hor in lecture, the CPC approach has prevailed

over the one in the EA.

This makes sense because exculpatory statements should be admitted on the

ground that common fairness requires that the entirety of the statement should be

admitted so as to show the precise context in which the admission was made, not

as to the truth of the contents thereof (Chan Kin Choi).

Thus, while they may not be admitted as substantive evidence of the truth of the

facts contained therein (by virtue of s 21 EA and the common law), they may still be

admitted as evidence of the fact or facts on which the accused intends to rely in his

defence in court (Chan Kin Choi) s 21 actually seems to reflect this





77/95

Suggestions for reform

Although the practice of the courts has been to simply adopt the position in the CPC

over that in the EA in situations where a person has been charged with a criminal

offence, it is still open for legal counsels to argue that s 21 EA should be the

applicable statute in such cases.

This possibility is due to the fact that there is no statutory preference for either of the

two approaches, thus the courts are open to rely on either.

Removing s 21 of the EA is not possible as well since it applies to civil cases.

It is suggested that based on the approach taken by the courts as well as the

rationale for plenary admissibility explained above, the EA should provide that

admissibility of confessions when a person is charged with a criminal offence will be

governed by s 258 CPC.



(3) Replacing the voluntariness principle in s 258 CPC with a direct


78/95

At present, there is a lack of clarity regarding the rationale(s) behind the

voluntariness rule in s 258, CPC.

Poh Kay Keong: The purpose or object of s 24, EA [the present s 258(3), CPC] is to

ensure the reliability of a confession and is founded on the premise that a

confession brought about as a result of a ITP is not reliable and should be

excluded.

However, the reliability rationale in itself is clearly insufficient to explain the rule.

Chai Chien Wei Kelvin, Lu Lai Heng: self-perceived inducement cannot in law

amount to a ITP

Such a conclusion is clearly not justified under a reliability rationale. A

confession brought about as a result of a self-induced ITP may be just as

unreliable as a confession brought about by a genuine ITP.where there

objectively was an ITP.


reliability formulation



79/95

Ian Dennis: The law of evidence should not be solely concerned with the

rectitude of the decision, but also with the legitimacy of the decision. This

involves both rectitude and notions of integrity and acceptability.

Academics have put forward the view that the voluntariness rule may besupported by other rationales as well (although reliability remains the main

justification for the rule).

Nemo Debetprinciple

Protective principle

Disciplinary principle

Judicial integrity principle





80/95


The current lack of clarity as to the rationales behind the voluntariness rule is

problematic In situations where there are conflicting rationales, judges may arrive

at different decisions if they hold different views about the relative importance of the

various rationales.

It is suggested that s 258 CPC should be replaced with a direct reliability

formulation, with a discretion to exclude evidence that has been improperly obtained

[Michael Hor, The Confessions Regime in Singapore [1991] 3 Malayan Law

Journal lvii].



(4) Enacting provisions for the proper regulation of police procedure


81/95

The UK example PACE

The UK has a Police and Criminal Evidence Act 1984 (PACE).

PACE mainly deals with police powers to search an individual orpremises, including their powers to gain entry to those premises,

the handling of exhibits seized from those searches, and the

treatment of suspects once they are in custody, including being

interviewed.


within the CPC




82/95

Under Part VI of the PACE, the Secretary of State is required to

issue codes of practice governing police powers.

These codes of practice cover in detail:

stop and search arrest

detention

investigation

identification

interviewing detainees


within the CPC




83/95

For example, PACE Code C provides:

Except as below, in any period of 24 hours a detainee must be

allowed a continuous period of at least 8 hours for rest, free from

questioning, travel or any interruption in connection with the

investigation concerned. (Para 12.2)

Breaks from interviewing should be made at recognised meal

times or at other times that take account of when an interviewee

last had a meal. Short refreshment breaks shall be provided at

approximately two hour intervals (Para 12.8)

Cf. the lack of clear guidelines in SingaporeIfthe questioning is

too vigorous or prolonged, it becomes oppressive (Kadar (HC))


within the CPC




84/95

Section 78 of the PACE provides:

In any proceedings the court may refuse to allow evidence on

which the prosecution proposes to rely to be given if it appears to

the court that, having regard to all the circumstances, including thecircumstances in which the evidence was obtained, the admission

of the evidence would have such an adverse effect on the fairness

of the proceedings that the court ought not to admit it.


within the CPC




85/95


The current standards (robust questioning vs too rigorous or

prolonged) are too vague. They do not allow us to predict with any

certainty whether particular conduct amounts to oppression.

There is a need to formulate clear standards of and guidelines for

proper police behaviour in the process of interrogation and of the

taking of statements from suspects.

Having prescribed standards or guidelines in place will go towards

ensuring that confession evidence is accurate and reliable.


within the CPC




86/95

Police officers have nothing to fear from their interrogations being

video recorded. After all, public policy is in favour of trusting the

integrity of the police, and this gives them a certain freedom to conduct

their investigations more effectively (Kadar).

The purpose of video recording is to prevent the rare occasions wheremiscarriages of justice might occur, because of the small but real

possibility that police officers (who are human beings afterall) may be

overzealous and decide that strict compliance with procedure may

contribute to a factually guilty offenders freedom.

Video recording, when combined with measures such as clearguidelines on how robust interrogations can get, will also ensure that

the police has irrefutable proof that their statements were extracted

voluntarily and according to procedure.


within the CPC




87/95

The statements by the Ministry in the aftermath of Kadar that video

recording would not be effective with regard to statements such as those

taken in a police car, or at the scene of the crime has no bearing on video

recordings during interrogations

Interrogations take place after a suspect has been taken into custody at a

police station or otherwise - these can be easily video recorded

One possible argument is that video recording may not necessarily prevent

police impropriety since an officer could simply make an ITP to a suspect

before they enter the interrogation room and are filmed

However, this scenario is possible even without video recording.


within the CPC




88/95


Add video recording as one of the procedural requirements for

statements taken under interrogation in the CPC, with exceptions such

as if the police can prove that operational necessity mandated a lapse

in procedure (e.g. if there were technical malfunctions, and the policehad to take a statement immediately because e.g. the accused was

grievously injured)

Adopt HCA position: a lack of video records will not render evidence

inadmissible but will allow the court to draw an adverse inference

against the police unless otherwise explainable. Video recording ensures the protection of both suspects and

interrogators

Irrefutable evidence to prove or dispute any claims of oppression

by suspects

( ) act g p o s o s o t e p ope egu at o o po ce p ocedu e

within the CPC



89/95



90/95

Lee Mau Seng v MHA [1971 - 1973] SLR(R) 135: this [constitutional

right to legal advice] must be granted to [a person who is arrested]

within a reason able t imeafter his arrest.

Jasbir Singh at [49]: two weeks in the present case was a reasonable

time.

Notably, also stated that in any case the recording of a statement

under s 122(6) of the [1985 CPC] does not compel an accused person

to make any statement which incriminates him (only that he has to

state any fact which he intends to rely on in his defence in court)

Q: if an accused is compelled to make a self-incriminatingstatement, should the reasonable time after his arrest before he

can consult legal counsel be shorter?

( ) g p p p g p p

within the CPC




91/95

But in Kadar, which invo lved suchself-incriminating statements, the

judge affirmed Jasbir Singh and stated at [57] that even after an

accused engages counsel, there is no legal rule requiring the police to

let counsel be present during subsequent interviews with the accused

while investigations are being carried out.

In fact, adverse inferences could be drawn against the accused under

s 123(1) of the CPC (now s 23) for remaining silent at his interview on

the ground that he wishes to take legal advice before answering a

question (based on the warning that an arresting officer must read out)

Rationale: in Singapore, the law provides police officers with greatfreedom and latitude to exercise their comprehensive and potent

powers of interrogation in the course ofinvestigations.

( ) g p p p g p p

within the CPC




92/95

USA: The US Miranda rights (Miranda v Arizona 1966 Supreme Court)

mandate that a person must be clearly informed that he/she has the

right to consult with an attorney and to have that attorney present

during questioning, before interrogation begins.

Massiah Doctrine: prohibits the admission of a confessionobtained in violation of an accuseds Sixth Amendment right to

counsel - statements made by an accused outside the presence of

his attorney must be suppressed.

Australia: common law right to silence - judge/jury not permitted to

draw adverse inferences when a defendant remains silent. Furthermore, anything said to an Australian police member should

be corroborated, especially through video/audio tape. If not done

so, it will be admitted only under exceptional circumstances (S.

464H (2)(A), Crimes Act1958)

( ) g p p p g p p

within the CPC




93/95

Canada: while a suspect has a right to counsel and the police are

obliged to not attempt to obtain evidence until the suspect has had a

reasonable opportunity to contact legal counsel, they do not have the

right to have counsel present during the questioning.

UK: Police and Criminal Evidence Act allows adverse inferences to bedrawn against a suspect where he refuses to explain something, and

then later produces an explanation.

... the integration of counsel into the interrogation proceeding will be

the most complete safeguard against the use of abusive techniques of

interrogation Enough evidence is at hand to warrant the conclusionthat the police subject persons in custody and under interrogation to

many kinds of force and intimidation - Richard Jaeger, The Right to

Counsel during Police Interrogation, 31 March 1965, California Law

Review

( ) g g

within the CPC




94/95

Arguments against legal counsel present at interrogations are

generally along the lines that many wrongs would go unpunished.

E.g. where all the circumstances point towards his guilt but there

is no evidence otherwise that can convict him apart from a

confession but does this not mean that there is a reasonabledoubt that he is guilty?

Relatedly, a 2010 study by members of the Erasmus University

Rotterdams Faculty of Law demonstrated that the chances that a

suspect will use his right to remain silent are greater when he receives

legal advice (be it in the form of consultation or the presence of alawyer during the interview) than when no such assistance is provided

Both good and bad

Also pointed out that priorconsultation seems to have a greater effect

than the presence of a lawyer during the interrogation itself

within the CPC




95/95


A desirable approach seems therefore to be the one taken in Canada,

where an accused has the right to consult legal counsel before the

interrogation, but not to have legal counsel present during interrogations.

This way, he can be armed with knowledge of his rights and what heshould/should not say during interrogations, and the process of police

interrogations will not be interrupted by a legal counsel who could possibly

make investigations very difficult for the police.

This approach is desirable if it is protection of the accuseds rights that is

the focus - if it is police impropriety that we are concerned with, video

recording of interrogations is arguably more effective.

However, it is unlikely that Parliament will enact such a change, based on

the Singapore constitution. Whether the judiciary will re-interpret the

tit ti d l i j d t th bl ti ill

within the CPC


Documents

Confessions (Nigel, Phoebe, Si Ying).pptx