Dec11

Section 27 Discovery Information: To Have or Not to Have a Voir Dire

[2003] 3 MLJ cxxi   Mohd Akram Shair MohamadLLB, PhD, Barrister, Advocate & Solicitor, Professor of Law, Ahmad Ibrahim

Kulliyyah of Laws, International Islamic University Malaysia

Section 27 of the Evidence Act states:

When any fact is deposed to as discovered in consequence of information received froma person accused of any offence in the custody of a police officer, so much of suchinformation, whether such information amounts to a confession or not, as relatesdistinctly to the fact thereby discovered may be proved.

The gist of s 24 of the Evidence Act is that an accused person'sconfession is only admissible in evidence against him if it isvoluntarily. That is, it is not as a result of inducement, threat,promise, or oppressive conduct, held out by a person in authority thatif the accused makes a confession he will gain and advantage or suffera prejudice of a temporal nature

In order to decide whether Section 27 is subjected to Section 24 forvoluntariness to be proven, the court look into the express intentionof the legislature. The federal court in Goi Ching Ang v PP held:If s 27 were held subject to s 24, then, logically, it would also be held to besubject to other provisions to the like effect or of similar nature as the said s 24contained in other enactments eg, s 113 of the Criminal Procedure Code, s 37A of theDangerous Drugs Act 1952, s 75 of the Internal Security Act 1960, s 15 of thePrevention of Corruption Act 1961 (repealed with effect from 8 January 1998), s 45 ofthe Anti-Corruption Act 1991. In that case, quite apart from running counter to caseslike PP v Sandra Margaret Birch, supra, and PP v Toh Ah Keat, supra, one section in an Act (ie,s 27 of the Evidence Act 1950) would be held subject to another section in a differentAct (eg, s 113 of the Criminal Procedure Code, and provisions to the like effect inother Acts). Having regard to the wordings of those provisions in other enactments,

which provisions bear no reference to s 27 of the Evidence Act 1950, it would bebeyond the function and outside the province of the court so to interpret. 

In short, it was argued that it might not be the intention oflegislature to subject s27 to s24 of Evidence Act. However, theFederal Court also expressed its complete agreements as a matter ofpolicy with the view expressed in Md Desa of the desirability as to thevoluntariness of s 27 information.Mehta Actg CJ in Vijay Kumar said:

If it is held that the police can procure a disclosure statement from the accusedunder inducements and threats and even by resorting to third degree methods, then itwould be easy for an unscrupulous police officer, who has a prior knowledge about theplace of concealment of an article which is used during the commission of the offence,to obtain the required statement from the accused who is in his custody and then toutilize it against him during the course of the trial. Such a situation is obnoxiousto judicial conscience. If resort can be had to compulsion or inducement in the matterof testimonial utterances, the truth runs the risk of being smothered and the judicialdecision which are is based on the discoveries which tainted by falsehoods would neverbe conducive to justice. Therefore, even on a bare reading of the provisions of s 27we have no doubt in our mind that the statement of the accused contemplated by thatsection must be a voluntary statement, and not the one which is induced by threat,inducement or third degree methods.... since the statement induced by the police officer is not voluntary, that statementcannot be considered to be the voluntary statement of the accused and therefore even if s 24of the Evidence Act was not on the statute book this statement being not of the accused should be taken out ofconsideration' (Emphasis added).

In addition to the above reason for holding that the s 27 informationshould not have been admitted, the Federal Court also held that it hasthe common law discretion to exclude such s 27 information, as vestedto it by s 3(1)(a) of the Civil Law Act 1956. It observed that:

The operative part at the commencement of s 3(1) ie, 'Save so far as other provisionhas been made or may hereafter be made by any written law in force in Malaysia,' doesnot, in our opinion, take away the discretionary power to exclude the confessions inappropriate cases since we, relying on the cases cited, have accepted that s 24 of theEvidence Act 1950 has no application to section 27 information. That being so, thecourt is thrown back on its common law powers.

Another reason for holding that the s 27 information should not havebeen admitted was that is offended the notions of natural justice thatis, fairness, as enshrined in arts 5(1) and 8(1) of our FederalConstitution. The Court then observed at pp 20-21:

'The essence of natural justice is fairness. So no amendment to the Constitution isneeded to empower the legislature ... to enact whatever laws it thinks appropriate to

regulate the procedure to be followed at the trial of criminal offences ...; subjectonly to the limitation that ... such procedure does not offend against somefundamental rule of natural justice. It must not be obviously unfair.

Fairness requires fair trial which, in turn, needs fair procedure. Fair processrequires that the legitimate interests of both the prosecution and the defence areadequately provided for. While the police ought to be given a reasonable opportunityto question suspects and accused persons, in is investigation, the accused must alsobe reasonably protected from the danger of extraction of unreliable statements and ofstatements (even if reliable) by some improper means. Evidence obtained in anoppressive manner by force or against the wishes of an accused person or by trick orby conduct of which the police ought not to take advantage, would operate unfairlyagainst the accused and should in the discretion of the court be rejected foradmission. The court should ensure that the standards of propriety in obtainingsection 27 information are scrupulously followed in police station.'

The author of the article held that due to the reasons asserted above,Section 27 must be subjected to Section 24 despite the failure ofEvidence Act to spell it out.

Posted 11th December 2012 by Loo hao han Labels: Article Section 27 0

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Solum Evidentia

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1.

Dec

16

False Confession

A brief history: This is the case of Michael Crowe aged 14who confessed to the murder of his sister at their home in1998.The boy along with his two friends was charged to themurder solely based on their statements given during theinterrogation at which no parent or a lawyer was present. Nophysical evidence was tendered. Michael Crowe wasinterrogated for nearly ten hours and the investigators liedto him regarding other evidence, the same was applied to hisother two friends.  In 2004 new evidence were found andanother person was actually found guilty of the murder. In2012, the Superior Court ruled that the boys were factuallyinnocent of the crime and dismissed the case against them.

This video is an example of how a confession may be made dueto inducement, threat or promise. Here there was a false promise by the interrogators, plus it was coercive and confrontational and attacked the suspects’ memory. It shows that inducement, threat or promise should not necessarily bein physical manner. For example, a person in authority says that the truth has come out and that everyone knows about itand tells the accused that he better say what he knows, thisitself may amount to a veiled inducement and threat (PP v Law Say Seck). The interrogators in this video made false promise to the boy, saying that if he does not confess, he will be punished in an adult prison but if he does confess, the police will help him. This is an example of situation where the suspect may make the confession out of fear going into the prison and therefore he will confess based on the false promise made to him. A suspect will usually submit to a highly coercive interrogation confessing to a crime he didnot commit to avoid further psychological torture. This is why section 24 is important as it makes confessions made in that nature irrelevant to the court.

Posted 16th December 2012 by Shandra

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2.

Dec

16

The admissibility of police reports in accident cases

The police report in an accident case would normallycontain particulars of the vehicles involved as well as abrief description of the manner in which the accidentoccurred. The information contained in such a report wouldbe very useful to the police, who are under a duty toinvestigate every accident reported. Police investigationsin an accident case would primarily be geared towardsascertaining the cause of the accident so that appropriateaction may be taken against the wrongdoer under the RoadTransport Act 1987.

The two main issues in accident cases are liability andquantum of damages. The liability is depending upon proof offault and it would be determined by the courts upon aconsideration of the oral evidence given by the witness aswell as the documentary evidence. The quantum of the damageswill be as the fact of the each case. Only the firstinformation report (FIR) is admissible in evidence and allsubsequent police report are inadmissible except perhaps forthe limited purpose of impeaching the credibility of themaker.

The basic rule and principle for the admission ofevidence in any court of law is that it must be 'relevant'to the proceedings before the Court. Evidence would berelevant if it either proves or disproves a fact in issue oraffects the credibility of a witness and not all relevantevidence is admissible. Evidence would be admissible if itis relevant and not excluded by any rule of evidence. Thepolice reports lodged by the parties are relevant because

they would normally contain the gist of each version and maybe used to contradict and discredit the oral evidence of theparty in court. Besides, a litigant would also be entitledunder the law to rely on any admissions in his favour in thepolice report of his opponent.

In MA Clyde v Wong Ah Mei & Anor, the defendant did not giveevidence but the plaintiffs sought to get the defendant'spolice report admitted as evidence as it contained certainadmissions in their favour. Despite objections from thedefendant’s counsel, the learned judge admitted the policereport, and found the defendant solely liable for the saidaccident. On appeal to the Federal Court, the defendant(appellant) contended that the police report in question wasin fact not a first information report but a statement madein the course of police investigation and as decided in twoearlier (criminal) cases was absolutely privileged and thatthe learned trial judge was wrong in admitting it. Gill FJ(as he then was) upon perusing the facts of the case,concluded that 'the police report was clearly a firstinformation report and not a statement in the course ofpolice investigation' and so the trial judge had beencorrect in admitting it.

In the case Jaafar Bin Shaari & Anor V Tan Lip Eng &Anor, a pedestrian was killed as a result of being knockeddown by a motorcycle. The administrators of her estatebrought an action for damages against the rider of themotorcycle (the first defendant) and its registered owner(the second defendant) in the Sessions Court. On the issueof liability, the plaintiffs did not call any witness exceptfor the investigating officer to tender a certified truecopy of the police sketch plan and key showing the scene ofthe accident. The learned Sessions Court Judge ruled that itwas inadmissible and held that since without that report,there was no evidence to show how the accident had happened;the plaintiffs had failed to prove their case. On appeal atthe high court, the the court held that the said report wasinadmissible and dismissed the appeal. But on appeal at

Supreme Court the decision was reversed as the learned judgeconcluded that the police report of the first defendant wasnot wholly exculpatory but contained certain admissions byhim to the effect that he had driven across the path of theplaintiff and so was admissible in law. The decision of thesession’s court was consequently set aside and a finding ofliability in the ratio of 75% against the defendants and 25%against the plaintiff was substituted.

Besides that, it also be stressed that the ruleexcluding the admissibility of police reports that are notfirst information reports belongs strictly to the realm ofcriminal jurisprudence and has no relevance to civilproceedings.

Pursuant to section 21 and 32(1)(c) of the EvidenceAct, a litigant is entitled to take advantage of anyadmissions in his favour contained in a previous statementof his opponent, including the police report made by him.Such admissions would be extremely useful in fatal accidentclaims where there are no eyewitnesses and in cases wherethe claimant is a young child, mentally handicapped orotherwise incapable of giving evidence himself. It wouldappear that this right may only be exercised at the fulltrial of the action and not in interlocutory proceedings orin applications to strike out the statement of claim ordefence.

The admissibility of the police report also depends onthe time period or factor. The Road Transport Act 1987requires police reports in an accident to be lodged within24 hours of the accident. In Tabarani bin Mohd Arsad & Anor vChan Tenn Yeu, Abdul Malik Ishak J held that “in lodging thatpolice report, there was expediency on the part of thedriver of motor lorry and this must be read favourably tohis benefit”.

Delays are sometimes inevitable. For instance, when aperson has suffered injuries in the accident of a naturethat requires a period of hospitalization and treatment, his

immediate concern would surely be to obtain the necessarytreatment first. All other considerations, including theneed to lodge a police report, are secondary. Any reasonabledelay in lodging a police report in such circumstances wouldnormally be accepted as justified by the courts.

In Panirselvi d/o AN Manickam v Toh Bee Lian & satu lagi, thelearned counsel for the defendants argued that the policereport of the plaintiff ought to be rejected as it waslodged some eight months after the accident, which providedher with ample time and opportunity to fabricate the report.The argument did not impress Mohd Ghazali bin Mohd Yusof Jwho was satisfied that the delay was occasioned by theserious injuries suffered by the plaintiff who requiredprolonged treatment.

There are exceptions to this rule. Firstly, if adocument has been agreed to and admitted by both parties tothe dispute, the maker need not be called by virtue of s58(1) of the Evidence Act 1950. It must however, beemphasized that the requirement to call the maker may bedispensed with only if the report had been agreed upon bythe parties unconditionally, i.e. when it is both agreed andadmitted, and not in the vast majority of cases where thereports are agreed subject to the makers being madeavailable for cross-examination.

Further exceptions to this rule are provided by section32 and 73A of the Evidence Act 1950. Section 32 is basicallya codification of the common law exceptions to the ruleagainst hearsay evidence and it applies to both criminal andcivil proceedings. It allows the statements of a person whois dead or who cannot be found or who has become incapableof giving evidence or whose attendance cannot be procuredwithout an amount of delay or expense which under thecircumstances of the case appears unreasonable.

Section 73A was introduced in 1971 to deal specificallywith the admissibility of documentary evidence in civilcases. The said section allows documentary evidence to be

adduced in respect of all facts of which direct oralevidence would be admissible. The common law requirement fordocumentary evidence to be tendered through the maker ispreserved vide s 73A (1) subject to certain exceptions suchas when the maker is dead or is unfit by reason of hisbodily or mental condition to attend as a witness or isbeyond the sea and it is not reasonably practicable tosecure his attendance and when he cannot be found despiteall reasonable efforts.

In conclusion, the admissibility and use of evidence,particularly in civil proceedings, is a matter that featuresregularly in running-down matters. There can be no doubtthat these issues must be determined strictly in accordancewith the rules of evidence as contained in the Evidence Act1952 and the existing rules of practice and procedure.

Posted 16th December 2012 by Sharvin Nair

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3.

Dec

16

Public Prosecutor v Veeran Kutty & Anor Basically this was an armed robbery case where there was atrial-in-trial regarding the caution statement administeredto both the accused. The facts of the case is as followed.

The two accused and some others took part in a robbery atBatu Gajah on 7 September 1983. They were apprehendedoutside the town after being chased by police. During thechase they were observed to have been holding a pistol each.When arrested, they were no longer in possession of thepistols. After being interrogated, both accused led thepolice back to the place where they were arrested and twopistols and 11 rounds of ammunition were recovered. Theywere subsequently charged under the Internal Security Act1960 for unauthorized possession of firearms. 

In the course of the trial the prosecution sought to admitthe accused's cautioned statements and the defence sought tointroduce evidence of the armed robbery. Since the secondaccused (Baharuddin bin Awang) preferred to speak in hismother tongue which is Bahasa Malaysia whereby ASP Hassan(the officer in charge) whom was also a Malay man,therefore, language was no barrier. The officer in chargeadministered those caution words as: 'adalah kewajipan sayamemberi amaran kepada kamu, bahawa kamu tidak diwajibkankata apa-apa atau menjawab apa-apa soalan tetapi apa-apayangkamu katakan samada sebagai menjawab kepada sesuatu soalanatau tidak, boleh diberi sebagai keterangan'. The secondaccused said he understood the caution. He said 'yes' to thequestion whether he wanted to give statement voluntarily and

'no' to the question whether he had been threatened, inducedor promised (anything) to give a statement.

ASP Hasaan said that he himself did not so induce or promiseor threaten the second accused, etc. He did not see anyinjury on the second accused, who did not complain aboutanything to him. When the statement was recorded, it wasread back and explained to the second accused who did notwant to correct it and who signed it.

In cross-examination he reiterated substantially what hesaid earlier. Inter alia, he agreed that each time aprisoner was removed from the lock-up, an entry would bemade in the lock-up diary, and he did not check up the lock-up diary. The prosecution then closed its case at the trial-within-a-trial and learned defence counsel calledstraightaway the second accused to the box.

The second accused said the statement was not voluntarilymade. After his arrest, he was interrogated by twoinspectors whom are Insp Hambali, Insp Sahadan and two maleIndian policemen whose names he did not know. He wasassaulted by the four police personnel and subjected toprolonged interrogation, and further Insp Hambali warned himthat if he were to tell ASP Hassan about these, he would befurther beaten up. Thus, he said that he was stillfrightened when he gave the statement to ASP Hassan.

In cross-examination he said that he was continuouslyassaulted by Insp Hambali from the day of his arrest untilthe following day. He said that he was assaulted at about10.45am on 7 September 1983. He said he was assaulted, many

of them joined in and therefore he did not know how InspSahadan assaulted him. The two male Indian policemen were apolice constable and a detective. Some Indian policemen werecalled for the second accused to identify and he identifiedDPC George Lingam. He said that he had signed the cautionedstatement as asked and he was not sure if he understood thestatement when it was read back to him.

All police officers denied the accusation by the accused

On evidence, the Judge gave his reason and held as, "I sawall the witnesses in the trial-within-the-trial and fromtheir demeanour, I was satisfied that the second accused hadnot raised a reasonable doubt on the prosecution's case inthe trial-within-the-trial and that the statement wasvoluntary in the sense that there was no promise, inducementor threat of the kind in question, neither was there anyoppression." Therefore it could be concluded that  a totalof four hours of interrogation before the statement wasrecorded could not be construed as oppressive in any way andthe cautioned statements of the accused were admissible.

Posted 16th December 2012 by Amorsnowflake

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4.

Dec

16

Comparison between Section 113Criminal Procedure Code and Section 26 of Evidence Act 1950

      Section 26 of Evidence Act 1950 and Section113 Criminal Procedure Code is a provision which isinter-related.  Section 26 of Evidence Act 1950covers the confession by the accused while in thecustody of a police officer whereas the Section 113Criminal Procedure Code covers the statements madeby any person to a police officer during the courseof police investigation.

       Section 26 Evidence Act 1950 states thatsubject to any express provision contained in any written law, noconfession made by any person whilst he is in the custody of a policeofficer, unless it is made in the immediate presence of a SessionsCourt Judge or Magistrate, shall be proved as against that person.This section has clearly shown that confession madethe accused while in the custody of a police isadmissible. In my view, the law maker has take intoconsideration factors such as involuntariness,inducement or threat when the accused is in thecustody of police. A third party may not understandhow the accused made the confession in the custodyof police. As stated earlier, the confession of theaccused may be made due to threat orinvoluntariness thus this will be unfair to theaccused as the accused is not voluntary when makingsuch confession.  To prevent injustice to the

accused, the law maker has draft the provision insuch so that to give protection to the accused.

         

Section 113 Criminal Procedure Code hasrecently been amended. Before the amendment, thesection states that where any person is charged with anyoffence any statement, whether the statement amounts to aconfession or not or is oral or in writing, made at any time, whetherbefore or after the person is charged and whether in the course of apolice investigation or not and whether or not wholly or partly inanswer to questions, by that person to or in the hearing of any policeofficer of or above the rank of Inspector and whether or notinterpreted to him by another police officer or other person shall beadmissible in evidence at his trial, any such statement may be used incross-examination and for the purpose of impeaching his credit.This has clearly shown that the statement made bythe accused which includes a confession to a policeabove the rank of Inspector is admissible eventhough is in the course of police investigation.Besides that, the section did not mentionedregarding the voluntariness of statements but cases

such Ibrahim v R and DPP v Ping Lin had shown thatvoluntariness must be proved in order to make aconfession admissible. The court has take intoconsideration the factor of voluntariness whendeciding the admissibility of the confession ofaccused. This is quite in par with the Section 26of Evidence Act 1950.

After the recent amendment of Section 113, thenew Section 113 Criminal Procedure Code states thatexcept as provided in this section, no statement made by any personto a police officer in the course of a police investigation made underthis Chapter shall be used in evidence.  This new amendmenthas brought a new dimension to the Section 113Criminal Procedure Code as the law has exclude thestatement which may include confession made by theaccused during the police investigation to beadmissible. As stated before, the law maker hastake into consideration as to how the confessionwas made during the police investigation. Underthis new amendment, even if the confession wasvoluntarily made during the police investigation,the confession is inadmissible. From here, we cansee that the law maker is trying to minimize theinjustice towards the accused. This section can be

say is in par with the Section 26 Evidence Act1950.

In my view, Section 26 Evidence Act 1950 andalso Section 113 Criminal Procedure Code is tocertain extent a protection to the accused. Duringthe custody of police, the police may start offwith their investigation. At this time, thestatements made by the accused will not beadmissible. However, at the initial stage ofinvestigation when the accused is not in thecustody of police, the accused may have makeconfession and in this situation the accused isalso protected by the law because the confession isnot admissible. In addition, these two sectionsclearly show that the law maker would like to bringdown the cases on police abusing the accused.Police may abuse the accused when the accused is inthe custody of police or during the policeinvestigation. By doing so, the accused may makeconfession and if the confession make under thiscircumstances is admissible, this will prejudicethe accused.

Conclusion, the new amendment of Section 113Criminal Procedure Code and Section 26 Evidence Act1950 is intertwine to safeguard the accused. 

Posted 16th December 2012 by kai lee

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5.

Dec

15

Dato' Seri Anwar Ibrahim v PP

                                                           Dato’ Seri Anwar Ibrahim v PP (2004)

 In this case, Dato’ Seri Anwar Ibrahim was the firstappellant and the second appellant been charged with havingcommitted carnal intercourse against the order of the natureand other offences. There are issues on the statement and

confession made by the second appellant was not madevoluntarily.

Before admitting that piece of statement or confession(later referred as P4) , the learned trial judge conductedthe trial-within-the-trial solely to determine the issue ofvoluntariness. The defence added other points in objectingthe admission of  P4, including the failure of themagistrate to note down in P4 itself the motive of thesecond appellant in making it and it was wrong for the trialjudge to accept the evidence.

After consider on all the arguments from the defence,the court held that there are no merit and lack of goodauthority to prove that there are errors on the ruling fromthe learned judge in the issue of voluntariness. In thecourt’s view, once the learned judge ruled that P4 was givenvoluntarily that should meet the requirement. There is nolegal necessity for him to expressly state the standard ofbeyond reasonable doubt had been met in order for theadmission to be good in law. It is implied from thefindings.

The court followed the judgment in Chan Ming Cheng v PPwhere the court held that there is no burden on an accusedperson to prove that the statement recorded from himvoluntary. The burden lies on the prosecution to showpositively that the statement was voluntarily given. Thereis also no burden on an accused to raise a reasonable doubtas to the voluntariness. The only burden is to showsuspicious circumstances surrounding the making of orrecording of the cautioned statement. So long as thesuspicion is reasonable as to the voluntariness of thestatement, it is incumbent on the trial judge to hold itinadmissible.

The court do not question on the decision and theopinion from the learned judge that the second appellant wasmaking his confession voluntarily. What is more important isfor this court to examine whether the findings of thelearned trial judge that the confession was voluntarily madeafter the trial within a trial is correct.

Posted 15th December 2012 by Kris Jiajun

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6.

Dec

15

Commentary on amendment of s 113 CPC

                  In year 2007, a grave amendment has beenmade on Criminal Procedure Code (hereinafter referred as“CPC’) and the amendment is very much applauded and welcomedespecially by NGOs that advocates human rights in which withsuch amendment on section 113, inter alia, the safeguards ofdetainee is in a way of more guaranteed whereby anystatement made including confession during the period ofcustody is inadmissible in court. In another words, itpurports to eradicate the abuse of power by law enforcementbody in carrying out aggressive interrogation againstdetainee. Aggressive interrogation is more often than notreferring to situation where detainee would have to beinterrogated until they submit answers which satisfied theofficer that make interrogation. By introducing new s 113,attempts of aggressive interrogations would be lessen inmost, if not all. Plus, it spur up the law enforcement bodyto be more diligent in gathering the incriminating evidenceand less rely on the ‘confession’ obtained from detainee,which are in most cases, made under involuntariness.

        Next, we continue with scrutinize of new s. 113 CPC,which has replaced the old one. Under the previous s 113, itwas incumbent for the arresting police officer to inform thesuspect of his rights to remain silent and not to answer anyquestions (the Caution). Meanwhile, the new section makes nomention of the ‘right of silence’ nor of the duty of theofficer to inform the suspect of it. It follows that lawenforcement body are no longer so informing suspects of thisright; the only consolation, if consolation it is, to the

suspect is that any statement made by him to the officer isalso inadmissible except in certain circumstances. Theexceptions are brought under the amendment, CriminalProcedure Code (Amendment) Act 2007, Act A1304.  Theamendment reads “The Code is amended by substituting for s.113 the following section”. 113 Admission Of Statements InEvidence 

(1) Except as provided in this section, no statement made byany person to a police officer in the course of a policeinvestigation made under this Chapter shall be used inevidence. 

(2) When any witness is called for the prosecution or forthe defence, other than the accused the court shall, on therequest of the accused or the prosecutor, refer to anystatement made by that witness to a police officer in thecourse of a police investigation under this Chapter and maythen, if the court thinks fit in the interest of justice,direct the accused to be furnished with a copy of it and thestatement may be used to impeach the credit of the witnessin the manner provided by the Evidence Act 1950 [Act 56]. 

(3) Where the accused had made a statement during the courseof a police investigation such statement may be admitted inevidence in support of his defence during the course of thetrial.

 (4) Nothing in this section shall be deemed to apply to anystatement made in the course of an identification parade orfalling within s. 27 or para. 32(a) of the Evidence Act1950.

 (5) When any person is charged with any offence in relationto (a) the making; or (b) the contents of any statement madeby him to a police officer in the course of a policeinvestigation made under this Chapter, that statement may beused as evidence in the prosecution’s case.

We shall now look at the significance and possibleconsequences of these amendments.  We know the underlyingreasons for this and other amendments was the public’s andgovernment’s dissatisfaction with  wide spread concernsregarding the high incidence of crime, perception ofcorruption in the Royal Malaysia Police, generaldissatisfaction with the conduct and performance of policepersonnel.

   The deletion of the old s. 113 may have stemmedboth from a realization that the courts were throwing outmany confessions of guilt as having been improperly obtainedwith the result that persons were being acquitted as noother incriminating evidence was made available by thepolice/prosecution, as well as a determination to force thepolice investigators to do their jobs thoroughly withoutrelying on short-cut ‘confessions’ of guilt. 

Yet, we can see that the cautioned statement bydetainee obtained by officers is not entirely inadmissibleas we shall see s. 27 of the Evidence Act – inter alia – hasbeen expressly preserved (new s. 113(4)) and hence ss. 24,25 and 26 of the same Act become very relevant. 

However, though the cautioned statement is amendedto be admissible in CPC, there are still act like DangerousDrugs Act 1952 and Customs Act 1967 still have the cautionedstatements be remain in force which cast disorder inadministering criminal justice and leave out nick which isvery much undesirable it is anticipated it could be refinedin the soonest manner.

Posted 15th December 2012 by yung ching T

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7.

Dec

15

Public Prosecutor v Naikan [1961] 1 MLJ 147 I believe that most of you had heard about the case of AnwarIbrahim or even the case of Mokhtar Hashim. However, thereseem to be an 'older' case happen around 1960.

  And the story began...

Once upon a time(although it is only 50++ years ago), a guy named Naikan(accused) was working in Kubang Division of Sungei MahangEstate had been arrested and detained at the police stationin Mantin on 9th February 1960 for a period of 2 weeks. Hewas released at the end of the period. However, Naikan wasrearrested on 4th March 1960. Right before his arrest, onthe same day, Naikan saw his manager (PW1), Mr Maw at his

office and told him that he was in difficulties and needhelp from the manager. There was an interview session withthe manager and Naikan in the form of question and answertook about 45 minutes. During the interview, the managersaid "you had better tell the truth" and he gave Naikan theimpression that he would help him to the best of hisability. Because of PW1's words and equivalent expressionhad made Naikan admitted that he had shot a woman bymistaken her for a pig, he further admitted that he had duga pit and shot the woman. 

 

The story haven end yet. After he rearrested, he confessedto the Magistrate Seremban, Mr Tan Chin Beng at theMagistrate's Court 2 hours later at the same day. 

The issue arose from this case is whether the 2 confessionmade by Naikan are admissible or not.

1) For the first confession:

The manager (PW1) admitted in the court that it washis practice  to urge his labourers to speak the truth inhis interview with them. According to Ismail Khan J., hestated that the words "you had better tell the truth" andequivalent expressions have acquired a fixed meaning as if atechnical term and have always been held to import a threator promise. Thus, he was satisfied that there was sufficientinducement to deprive the confession of Naikan to hismanager of its voluntary character so as to render itinadmissible in evidence. (ps: Whether PW1 is in relation tothe accused a person of authority is not under dispute)

 2) For the second confession

 (a) Mr Joseph (defendant's lawyer) contended that theinducement which had led to the first confession continuedto operate upon the mind of the accused and thoughout thetime when he made the second confession. He further arguedthat the interval between the 2 confessions was only 2 hoursand the interval was too short for the impression underwhich the first confession was made to be erased before thesecond confession was recorded and thus make it inadmissiblein evidence. 

 

(b) Che Wan Suleiman (DPP) contended that the improperinfluence under which the first confession was made wasremoved by the questions put to the accused by themagistrate (PW3) and the accused's answers thereto. The

magistrate was satisfied that the accused's statement wasvoluntary and that it was not prompted by any inducement,threat or promise.

 The Court held thatsecond confession to PW3 is also inadmissible in evidence.There is evidence that the accused on his first arrest wasdetained for a period of 2 weeks at the Mantin policestation which he made no attempt to volunteer anyconfession. It is when the accused seen PW1 and asked forhelp, as a result of the promise given by PW1, the accusedmade a statement to him and later confessed to PW3. The 2hours interval between the 2 confessions is too short tohave removed the influence he was under at the time he madehis confession to PW1. Besides, after the accused came outfrom the Magistrate's Chambers, the accused told PW1 that hewanted to destroy the confession. This conduct had clearlyindicated that the confession was involuntarily and taintedwith inducement or promise. 

 

Posted 15th December 2012 by yanleng

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Dec

11

Section 27 Discovery Information: To Have or Not toHave a Voir Dire

[2003] 3 MLJ cxxi   Mohd Akram Shair Mohamad

LLB, PhD, Barrister, Advocate & Solicitor, Professor of Law, Ahmad IbrahimKulliyyah of Laws, International Islamic University Malaysia

Section 27 of the Evidence Act states:

When any fact is deposed to as discovered in consequence of informationreceived from a person accused of any offence in the custody of a policeofficer, so much of such information, whether such information amounts toa confession or not, as relates distinctly to the fact thereby discoveredmay be proved.

The gist of s 24 of the Evidence Act is that an accused person'sconfession is only admissible in evidence against him if it isvoluntarily. That is, it is not as a result of inducement,threat, promise, or oppressive conduct, held out by a person inauthority that if the accused makes a confession he will gain andadvantage or suffer a prejudice of a temporal nature

In order to decide whether Section 27 is subjected to Section 24for voluntariness to be proven, the court look into the expressintention of the legislature. The federal court in Goi Ching Ang v PPheld:

If s 27 were held subject to s 24, then, logically, it would also be heldto be subject to other provisions to the like effect or of similar natureas the said s 24 contained in other enactments eg, s 113 of the CriminalProcedure Code, s 37A of the Dangerous Drugs Act 1952, s 75 of the

Internal Security Act 1960, s 15 of the Prevention of Corruption Act 1961(repealed with effect from 8 January 1998), s 45 of the Anti-CorruptionAct 1991. In that case, quite apart from running counter to cases like PP vSandra Margaret Birch, supra, and PP v Toh Ah Keat, supra, one section in an Act(ie, s 27 of the Evidence Act 1950) would be held subject to anothersection in a different Act (eg, s 113 of the Criminal Procedure Code, andprovisions to the like effect in other Acts). Having regard to thewordings of those provisions in other enactments, which provisions bear noreference to s 27 of the Evidence Act 1950, it would be beyond thefunction and outside the province of the court so to interpret. 

In short, it was argued that it might not be the intention oflegislature to subject s27 to s24 of Evidence Act. However, theFederal Court also expressed its complete agreements as a matterof policy with the view expressed in Md Desa of the desirabilityas to the voluntariness of s 27 information.

Mehta Actg CJ in Vijay Kumar said:

If it is held that the police can procure a disclosure statement from theaccused under inducements and threats and even by resorting to thirddegree methods, then it would be easy for an unscrupulous police officer,who has a prior knowledge about the place of concealment of an articlewhich is used during the commission of the offence, to obtain the requiredstatement from the accused who is in his custody and then to utilize itagainst him during the course of the trial. Such a situation is obnoxiousto judicial conscience. If resort can be had to compulsion or inducementin the matter of testimonial utterances, the truth runs the risk of beingsmothered and the judicial decision which are is based on the discoverieswhich tainted by falsehoods would never be conducive to justice.Therefore, even on a bare reading of the provisions of s 27 we have nodoubt in our mind that the statement of the accused contemplated by thatsection must be a voluntary statement, and not the one which is induced bythreat, inducement or third degree methods.

... since the statement induced by the police officer is not voluntary,that statement cannot be considered to be the voluntary statement of theaccused and therefore even if s 24 of the Evidence Act was not on the statute book this statementbeing not of the accused should be taken out of consideration' (Emphasis added).

In addition to the above reason for holding that the s 27information should not have been admitted, the Federal Court also

held that it has the common law discretion to exclude such s 27information, as vested to it by s 3(1)(a) of the Civil Law Act1956. It observed that:

The operative part at the commencement of s 3(1) ie, 'Save so far as otherprovision has been made or may hereafter be made by any written law inforce in Malaysia,' does not, in our opinion, take away the discretionarypower to exclude the confessions in appropriate cases since we, relying onthe cases cited, have accepted that s 24 of the Evidence Act 1950 has noapplication to section 27 information. That being so, the court is thrownback on its common law powers.

Another reason for holding that the s 27 information should nothave been admitted was that is offended the notions of naturaljustice that is, fairness, as enshrined in arts 5(1) and 8(1) ofour Federal Constitution. The Court then observed at pp 20-21:

'The essence of natural justice is fairness. So no amendment to theConstitution is needed to empower the legislature ... to enact whateverlaws it thinks appropriate to regulate the procedure to be followed at thetrial of criminal offences ...; subject only to the limitation that ...such procedure does not offend against some fundamental rule of naturaljustice. It must not be obviously unfair.

Fairness requires fair trial which, in turn, needs fair procedure. Fairprocess requires that the legitimate interests of both the prosecution andthe defence are adequately provided for. While the police ought to begiven a reasonable opportunity to question suspects and accused persons,in is investigation, the accused must also be reasonably protected fromthe danger of extraction of unreliable statements and of statements (evenif reliable) by some improper means. Evidence obtained in an oppressivemanner by force or against the wishes of an accused person or by trick orby conduct of which the police ought not to take advantage, would operateunfairly against the accused and should in the discretion of the court berejected for admission. The court should ensure that the standards ofpropriety in obtaining section 27 information are scrupulously followed inpolice station.'

The author of the article held that due to the reasons assertedabove, Section 27 must be subjected to Section 24 despite thefailure of Evidence Act to spell it out.

Posted 11th December 2012 by Loo hao han

Labels: Article Section 27

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9.

Dec

8

The False Confession Capital Posted 8th December 2012 by Dupicalz

Labels: False Confession Video

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10.

Nov

28

REX v SANTOKH SINGH [1933] 2 MLJ 178

REX v SANTOKH SINGH

[1933] 2 MLJ 178

Fact of the case

In this case, the accused was brought before Majistrate. TheMajistrate asked him whether he wanted to make a confession.The accused person said no but after that confession statement was made by him voluntarily. The court held that the statement should not be admissible and the prosecutor appealed.

The conversations between the accused person and the Majistrate were marked as Exhibit G as below.

 

Q:          What is your name?

A:           Santokh Singh.

Q:          What have you come here for?

A:           I was brought by the Police.

Q:          Do you want to make a statement yourself?

A:           No. I will answer any questions.

The Magistrate says:       I'm not going to ask you anyquestions.

Santokh says:                 It was my brother whom I stabbed.

The material part at the end is as follows:-

The Majistrate says:        You are not bound to make this statement. If you like, I will tearup. But if you wish to make it, it can be used against you.

Santokh says:                 I have made this statement of my own accord and not on account of anyone telling me or inducingme to do so.

Q:          When did you decide that you wanted to makethis statement?

A:           When I came before you, and you asked me whether I wanted to make a statement."

 

Respondent’s contention

The accused person’s argument was that Exhibit G is not admissible because it was not volunteer confession by the accused person based upon question and answer below quoted:-

Q:          Do you want to make a statement yourself?

A:           No. I will answer any questions.

The argument is that as the accused had stated that he did not want to make a statement he should have been told to go away; for, it is said, the statement was not voluntary.

Appellant’s contention

Appellant said that the negative reply which was followed by“I will answer any question” actually meant that the accuseddid not want to make a statement by narrative way but would rather the statement be made in question and answer form.

JudgmentAllowed the appeal.

Grounds of judgment

The court held that the accused did not say "no" in answer to the question if he would make a statement. He said "no" in answer to the suggestion that he should make it himself. That is why he added "I will answer any questions." The accused elected, in other words, to make his statement by the process of question and answer, not by the process of narrative.

If this view is correct the character of the statement as a voluntary statement is not lost because it was made by the process of question and answer.

The court further explained by usingSection 29 of Evidence Ordinance which says:-

If such a confession (that is one made by an accused person) is otherwise relevant, it does not become irrelevant merely because-it was made in answer to questions which he (the accused) need not have answered, whatever may have been the form of those questions."

The court explained that Section 29 (which is the predecessor of Section 29 of Evidence Act) was enacted to condone irregularities, are exceedingly wide and enough to cover all relevant irregularities as long as they were

relevant. The court held that the real test is that there isno pressure or inducement.

The court held that a confession which is relevant and free from inducement and threat will not become irrelevant just because it has irregularities as prescribed in Section 29 ofEvidence Ordinance. Hence, in my opinion, Section 29 of Evidence Act shall also be interpreted in the similar way because Section 29 Evidence Ordinance is its predecessor.

Posted 28th November 2012 by Loo hao han

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