confessions (nigel, phoebe, si ying).pptx
TRANSCRIPT
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
1/95
CONFESSIONS
Nigel Yeo, Phoebe Sim, Goh Si Ying
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
3/95
Q1. The Public Prosecutor requests a
memorandum from you advising him on
whether there are good grounds of appeal.
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
8/95
(1) Procedural impropriety (breach of recording procedures) does not
render statements of confession inadmissible
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
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
9/95
(1) Procedural impropriety (breach of recording procedures) does not
render statements of confession inadmissible
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
10/95
(1) Procedural impropriety (breach of recording procedures) does not
render statements of confession inadmissible
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]).
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
11/95
(1) Procedural impropriety (breach of recording procedures) does not
render statements of confession inadmissible
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
12/95
(1) Procedural impropriety (breach of recording procedures) does not
render statements of confession inadmissible
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
13/95
(1) Procedural impropriety (breach of recording procedures) does not
render statements of confession inadmissible
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)
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
14/95
(1) Procedural impropriety (breach of recording procedures) does not
render statements of confession inadmissible
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
15/95
Possible grounds of appeal
(1) Procedural impropriety (breach of recording procedures) does not
render statements of confession inadmissible
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.
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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.
Application to the facts
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
18/95
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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.
Decision of Lawless J
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
23/95
(1) The prosecution had discharged its burden of proving that the alleged
utterances were never made.
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
24/95
(1) The prosecution had discharged its burden of proving that the alleged
utterances were never made.
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
25/95
(1) The prosecution had discharged its burden of proving that the alleged
utterances were never made.
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
26/95
(1) The prosecution had discharged its burden of proving that the alleged
utterances were never made.
Application to the facts
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
utterances were never made.
Lawless J therefore erred in holding that the prosecution had failed
to discharge its burden of proof.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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).
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
28/95
(2) Even if the court finds that the alleged utterances were made, there
was no inducement, threat or promise rendering the statements
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).
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
29/95
(2) Even if the court finds that the alleged utterances were made, there
was no inducement, threat or promise rendering the statements
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
30/95
(2) Even if the court finds that the alleged utterances were made, there
was no inducement, threat or promise rendering the statements
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
31/95
(2) Even if the court finds that the alleged utterances were made, there
was no inducement, threat or promise rendering the statements
involuntary.
Application to the facts
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
32/95
(2) Even if the court finds that the alleged utterances were made, there
was no inducement, threat or promise rendering the statements
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
33/95
(2) Even if the court finds that the alleged utterances were made, there
was no inducement, threat or promise rendering the statements
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
34/95
(2) Even if the court finds that the alleged utterances were made, there
was no inducement, threat or promise rendering the statements
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
35/95
(2) Even if the court finds that the alleged utterances were made, there
was no inducement, threat or promise rendering the statements
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
36/95
(2) Even if the court finds that the alleged utterances were made, there
was no inducement, threat or promise rendering the statements
involuntary.
Test 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).
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
37/95
(2) Even if the court finds that the alleged utterances were made, there
was no inducement, threat or promise rendering the statements
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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.
Decision of Lawless J
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
42/95
(1) The authorities referred to by Lawless J (Azman) can be distinguished
from the present case
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
43/95
(1) The authorities referred to by Lawless J (Azman) can be distinguished
from the present case
Azman b in Mohamed Sanwan v PP
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
44/95
(1) The authorities referred to by Lawless J (Azman) can be distinguished
from the present case
Azman b in Mohamed Sanwan v PP
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
45/95
(1) The authorities referred to by Lawless J (Azman) can be distinguished
from the present case
Azman b in Mohamed Sanwan v PP
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
46/95
(1) The authorities referred to by Lawless J (Azman) can be distinguished
from the present case
Azman b in Mohamed Sanwan v PP
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
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
47/95
(1) The authorities referred to by Lawless J (Azman) can be distinguished
from the present case
Azman b in Mohamed Sanwan v PP
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
48/95
(1) The authorities referred to by Lawless J (Azman) can be distinguished
from the present case
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
49/95
(1) The authorities referred to by Lawless J (Azman) can be distinguished
from the present case
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
50/95
(1) The authorities referred to by Lawless J (Azman) can be distinguished
from the present case
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
51/95
(1) The authorities referred to by Lawless J (Azman) can be distinguished
from the present case
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
52/95
(1) The authorities referred to by Lawless J (Azman) can be distinguished
from the present case
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).
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
54/95
(2) The ITP did not operate on the mind of the accused
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
55/95
(2) The ITP did not operate on the mind of the accused
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.
Possible grounds of appeal
P ibl d f l
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
56/95
(2) The ITP did not operate on the mind of the accused
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
Possible grounds of appeal
P ibl d f l
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
57/95
(2) The ITP did not operate on the mind of the accused
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.
Possible grounds of appeal
P ibl d f l
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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.
Possible grounds of appeal
P ibl d f l
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
59/95
(3) The theory of confirmation by subsequent discovery is applicable and
the discovery was made in consequence of the accuseds confession.
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.
Possible grounds of appeal
P ibl d f l
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
60/95
(3) The theory of confirmation by subsequent discovery is applicable and
the discovery was made in consequence of the accuseds confession.
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.
Possible grounds of appeal
P ibl d f l
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
61/95
(3) The theory of confirmation by subsequent discovery is applicable and
the discovery was made in consequence of the accuseds confession.
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.
Possible grounds of appeal
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
62/95
(3) The theory of confirmation by subsequent discovery is applicable and
the discovery was made in consequence of the accuseds confession.
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.
Possible grounds of appeal
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
63/95
(3) The theory of confirmation by subsequent discovery is applicable and
the discovery was made in consequence of the accuseds confession.
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.
Possible grounds of appeal
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
64/95
(3) The theory of confirmation by subsequent discovery is applicable and
the discovery was made in consequence of the accuseds confession.
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).
Possible grounds of appeal
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
65/95
(3) The theory of confirmation by subsequent discovery is applicable and
the discovery was made in consequence of the accuseds confession.
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.
Possible grounds of appeal
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
66/95
(3) The theory of confirmation by subsequent discovery is applicable and
the discovery was made in consequence of the accuseds confession.
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.
Possible grounds of appeal
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
67/95
(3) The theory of confirmation by subsequent discovery is applicable and
the discovery was made in consequence of the accuseds confession.
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.
Possible grounds of appeal
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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.
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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
b. Video recording of police interrogations
c. Presence of legal counsel
Areas for Reform
(1) R i th f i i f th EA d CPC
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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
(1) R i th f i i f th EA d CPC
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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.
(1) Removing the confessions regime from the EA and CPC
(1) R i th f i i f th EA d CPC
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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.
(1) Removing the confessions regime from the EA and CPC
(1) R i th f i i f th EA d CPC
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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) Removing the confessions regime from the EA and CPC
(1) Remo ing the confessions regime from the EA and CPC
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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.
(1) Removing the confessions regime from the EA and CPC
(2) Codifying the default adherence to s 258 CPC in determining
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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.
(2) Codifying the default adherence to s 258 CPC in determining
admissibility for criminal confessions
(2) Codifying the default adherence to s 258 CPC in determining
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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
(2) Codifying the default adherence to s 258 CPC in determining
admissibility for criminal confessions
(2) Codifying the default adherence to s 258 CPC in determining
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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.
(2) Codifying the default adherence to s 258 CPC in determining
admissibility for criminal confessions
(3) Replacing the voluntariness principle in s 258 CPC with a direct
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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.
(3) Replacing the voluntariness principle in s 258 CPC with a direct
reliability formulation
(3) Replacing the voluntariness principle in s 258 CPC with a direct
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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
(3) Replacing the voluntariness principle in s 258 CPC with a direct
reliability formulation
(3) Replacing the voluntariness principle in s 258 CPC with a direct
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
80/95
Suggestions for reform
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].
(3) Replacing the voluntariness principle in s 258 CPC with a direct
reliability formulation
(4) Enacting provisions for the proper regulation of police procedure
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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.
(4) Enacting provisions for the proper regulation of police procedure
within the CPC
a. Guidelines as to the ambit of police powers
(4) Enacting provisions for the proper regulation of police procedure
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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
(4) Enacting provisions for the proper regulation of police procedure
within the CPC
a. Guidelines as to the ambit of police powers
(4) Enacting provisions for the proper regulation of police procedure
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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))
(4) Enacting provisions for the proper regulation of police procedure
within the CPC
a. Guidelines as to the ambit of police powers
(4) Enacting provisions for the proper regulation of police procedure
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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.
(4) Enacting provisions for the proper regulation of police procedure
within the CPC
a. Guidelines as to the ambit of police powers
(4) Enacting provisions for the proper regulation of police procedure
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
85/95
Suggestions for reform
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.
(4) Enacting provisions for the proper regulation of police procedure
within the CPC
a. Guidelines as to the ambit of police powers
(4) Enacting provisions for the proper regulation of police procedure
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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.
(4) Enacting provisions for the proper regulation of police procedure
within the CPC
b. Video recording of police interrogations
(4) Enacting provisions for the proper regulation of police procedure
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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.
(4) Enacting provisions for the proper regulation of police procedure
within the CPC
b. Video recording of police interrogations
(4) Enacting provisions for the proper regulation of police procedure
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
88/95
Suggestions for reform
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
b. Video recording of police interrogations
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
89/95
(4) Enacting provisions for the proper regulation of police procedure
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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
c. Presence of legal counsel
(4) Enacting provisions for the proper regulation of police procedure
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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
c. Presence of legal counsel
(4) Enacting provisions for the proper regulation of police procedure
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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
c. Presence of legal counsel
(4) Enacting provisions for the proper regulation of police procedure
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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
c. Presence of legal counsel
(4) Enacting provisions for the proper regulation of police procedure
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
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
c. Presence of legal counsel
(4) Enacting provisions for the proper regulation of police procedure
-
7/27/2019 Confessions (Nigel, Phoebe, Si Ying).pptx
95/95
Suggestions for reform
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
c. Presence of legal counsel