Confessions (Nigel, Phoebe, Si Ying)

CONFESSIONS
Nigel Yeo, Phoebe Sim, Goh Si Ying
Overview
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 Reform
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 procedure a. Guidelines as to the ambit of police powers b. Video recording of police interrogations c. Presence of legal counsel
Q1. The Public Prosecutor requests a memorandum from you advising him on whether there are good grounds of appeal.
1. Statement given in the police car
Accuseds Testimony
Taken soon after his arrest In a police car on the way from his home to the police station Recorded by the accompanying Sergeant in his notebook Was not read over to accused Was not signed by accused Explanation was that Sergeant was not experienced and had forgotten to do it
Decision of Lawless J
Lawless J held that the cases cited by the prosecution, which seem to have decided that compliance with the provisions in the CPC empowering the 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 Kadar is clear authority that 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.
Possible grounds of appeal 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

(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) be signed by him 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.

(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 PP at [44]
V K Rajah: as a general rule, voluntary statements from an accused person recorded by a police sergeant would be admissible even if 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

(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 weight to 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 prohibit a court from excluding statements that have been tainted by the presence of procedural irregularities - they merely provide that such statements are not in themselves inadmissible. The question is therefore under what circumstances can such statements be excluded by the court.

Procedural irregularities may be a cause for a finding that a statements prejudicial effect outweighs its probative value (Kadar at [56], citing Halsburys Laws of Singapore vol 10 at 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 (Kadar at [53]).

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 Kadar was 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 s 423(c) CPC.

(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] 2 SLR(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.

(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)

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 relevant provisions in the CPC has caused the prejudicial effect of the statement to outweigh its probative value (Kadar at [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.

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.
Application to the facts

This case contains similar procedural irregularities as that in Kadar - the accuseds statement there was also i) taken in a police car; ii) not read back 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 Kadar decided 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 Kadar was 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 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
If the Sergeant was made available for cross-examination and the

court finds his account of the interrogation to be credible (Kadar at [67]) then the procedural irregularities may not prejudice the appellant, as was found in Fung Yuk Shing v PP [1993] 2 SLR(R) 771. However, without this, then the explanation of mere carelessness is likely to be unsatisfactory, since [i]t is, it may be said, statutorily assumed that such senior police officers are competent and will discharge their obligations conscientiously. The Prosecution will therefore be unable to convince the court that the probative value of the statement is higher than the prejudicial effect against the accused, and this ground of appeal is likely to be unsuccessful.
2. Statements given in the police station 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.
Decision of Lawless J Lawless J held that the prosecution had not discharged its burden of proof: I simply cannot say that it is more probable than not 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.
Possible grounds of appeal (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.

(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.

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: For instance 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.

Case of Ismail bin Abdul 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 a finding of fact based on an assessment of witnesses credibility.

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.

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 no discrepancies 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.

(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 or promise, 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).

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 as was necessary for him to break down 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 such words should be approached in a common sense way and in the context of the individual case (Chai Chien Wei Kelvin v PP).

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 the truth, 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 grounds for supposing that he would gain any advantage or avoid any evil of a temporal nature by giving the statements.

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 is no 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.

Application to the facts Applying Osman bin Din v PP, the utterance in the present case was insufficient to give the accused reasonable grounds for supposing that he would gain any advantage or avoid any evil of a temporal nature by giving the statements.

Whether a self-perceived inducement can amount to inducement? In Chai Chien Wei Kelvin v PP, the Court of Appeal held that a selfperceived inducement cannot in law amount to an inducement. Lawless J, in completely disregarding the principle of stare decisis, opined that it should not matter how the inducement, threat or promise occurred in the mind of the accused, so long as it was there 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.

It is submitted that the position taken by the Court of Appeal in Chai Chien Wei Kelvin v PP is 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.

Whether there was oppression? Oppression relates to the methods and manner of interrogation preparatory to and during the making of statements oppressive questioning 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 remained silent 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.

How to reconcile oppression with the voluntariness principle? The court in PP v Law Say Teck held that oppression is a form of implied ITP. What is implied is that the bad treatment will stop if the suspect confesses.

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).

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 or inducement. Tan Boon Tat accused had not been given any food or drink for 9 hours. 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.
3. Statements given in the Remand Prison

Accuseds testimony
Took place a week after his interrogation at the police station

In the 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 better come clean completely, or he would certainly hang Accused produced a 5-page confession filling in many details of the circumstances under which he committed the crime This included information as to where an article used in the crime was hidden away As the 2 policemen arrived at the place concerned, they saw that 2 passersby had already found the item and were standing there discussing who might have left it there
Decision of Lawless J 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.
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.

(1) The authorities referred to by Lawless J (Azman) can be distinguished from the present case
Lawless J is presumably referring to Azman since the facts here, at first glance, appear to bear a resemblance to the facts in Azman

Azman bin Mohamed Sanwan v PP Facts The officer visited the accused at Remand Prison purportedly to serve on 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.

Azman bin Mohamed Sanwan v PP Facts According to the officer, after he served the charge on the accused and 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 gave evidence 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.

Azman bin Mohamed Sanwan v PP Holding The Court of Appeal held that the Prosecution had not discharged its burden. It was not convinced beyond reasonable doubt that the statement was obtained without any ITP, because there were just too many gaps in the Prosecutions evidence. 1) The statement was obtained by the officer several months after the accused 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.

Azman bin Mohamed Sanwan v PP Holding 2) The Prosecutions explanation that the officer was going to serve the ecstasy 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 charge so 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.

Azman bin Mohamed Sanwan v PP Holding 2) The Prosecutions explanation that the officer was going to serve the ecstasy 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

Azman bin Mohamed Sanwan v PP Holding 3) Information about an accomplice was raised in the statement but no steps 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.

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.

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 investigations were 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.

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 after he 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.

Since it can be argued that Azman is not applicable to the present factual scenario, there is room for the Prosecution to argue that the trial judges conclusion was unfounded. When viewed alone, the above circumstances in which the statement was obtained do not necessarily indicate the existence of a 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.

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).

(2) The ITP did not operate on the mind of the accused
One of the police officers told the accused that he had better come clean 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 Wei and Osman), it is clear that the words had better come clean completely were not meant to be an innocent exhortation to tell the truth like that in Ismail.

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 an ITP. 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 Kadar has 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.

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.

Whether the Prosecution can prove that the ITP did not actually operate 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

Whether the Prosecution can prove that the ITP did not actually operate 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.

(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 information as relates distinctly to the fact or thing thereby discovered may be proved.

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 fact discovered, the information would not be admissible under the section.

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.

Chin Moi Moi: Cited Pulukuri Kottaya v Emperor (PC): Example: Information supplied by a person in custody that I will produce 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 his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant.

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 of Chin Moi Moi, it is evident that the trial judge has succumbed to a fallacy in his reasoning. Lawless J equated the words fact discovered 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.

The trial judges conclusion cannot be right. Applying Chin Moi Moi, the fact discovered 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.

The trial judges 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).

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 may cause the public to lose respect and confidence in the administration of justice and may also increase the incidence of law breaking in society.

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 of confirmation 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 attributed to the accused if the 2 passersby can be proven to be independent witnesses, who have no incentive whatsoever to frame the accused.

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 so doing, 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.
Q2. The Minister for Law asks you to prepare a report on any matter raised in the judgment which might possibly be the subject of law reform, giving your opinion as to whether any change in the law ought to be considered.
Areas for Reform
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 procedure a. Guidelines as to the ambit of police powers b. Video recording of police interrogations c. Presence of legal counsel
(1) Removing the confessions regime from the EA and CPC
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 are fighting about who said or did what at the police station
[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 a confession. Significant: a finding of guilt can be based on a mere confession.
[Material taken from Michael Hor, The Confessions Regime in Singapore [1991] 3 Malayan Law Journal lvii]
For
The realities of police interrogation generate a possibility of unreliable confessions which cannot be discounted.
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 realities of police interrogation and may be insufficiently aware of the dangers of relying on such confessions.
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 given in 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
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 less often
Better to adopt the balanced approach advocated by Prof. Hor, i.e. custodial confessions generally admissible, but excluded where the possibility of unreliability reaches such a degree that PE > PV.
Reliability will be discussed later under the voluntariness rule.
(2) Codifying the default adherence to s 258 CPC in determining admissibility for criminal confessions
]
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, whether oral/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.
The logic of EA s 21, i.e. universal admissibility of admissions against the declarant 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
Suggestions for reform
Although the practice of the courts has been to simply adopt the position in the CPC over that in the EA in situations where a person has been charged with a criminal offence, it is still open for legal counsels to argue that s 21 EA should be the applicable statute in such cases.
This possibility is due to the fact that there is no statutory preference for either of the two approaches, thus the courts are open to rely on either. Removing s 21 of the EA is not possible as well since it applies to civil cases. It is suggested that based on the approach taken by the courts as well as the rationale for plenary admissibility explained above, the EA should provide that admissibility of confessions when a person is charged with a criminal offence will be governed by s 258 CPC.
(3) Replacing the voluntariness principle in s 258 CPC with a direct reliability formulation
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.
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 be supported by other rationales as well (although reliability remains the main justification for the rule). Nemo Debet principle Protective principle Disciplinary principle
Judicial integrity principle
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].
(4) Enacting provisions for the proper regulation of police procedure within the CPC a. Guidelines as to the ambit of police powers
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 or premises, 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.
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
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 Singapore If the questioning is too vigorous or prolonged, it becomes oppressive (Kadar (HC))
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 the circumstances 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.
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 b. Video recording of police interrogations
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 where miscarriages 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 clear guidelines 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 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
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 police had 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
(4) Enacting provisions for the proper regulation of police procedure within the CPC c. Presence of legal counsel
Art 9(3) of SG Constitution: Arrested will be informed as soon as possible of the grounds of his arrest; be allowed to consult and be defended by a legal practitioner of his choice Does not specify when an accused is entitled to consult a legal practitioner
Yong Pung How CJ in Jasbir Singh v PP [1994] SGCA 46 examined the Malaysian cases cited; emphasized that although the right of an arrested person to consult his lawyer begins from the moment of his interest, the exercise of that right must be subject to a balance between the arrested persons right to legal advice and the duty of the police to protect the public by carrying out effective investigations.
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 reasonable time after 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-incriminating statement, should the reasonable time after his arrest before he can consult legal counsel be shorter?
But in Kadar, which involved such self-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 great freedom and latitude to exercise their comprehensive and potent powers of interrogation in the course of investigations.
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 confession obtained 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 Act 1958)
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 be drawn 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 conclusion that 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
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 reasonable doubt 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 a lawyer during the interview) than when no such assistance is provided Both good and bad Also pointed out that prior consultation seems to have a greater effect than the presence of a lawyer during the interrogation itself
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 he should/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 constitution and overrule previous judgments on the reasonable time will be revealed in time.

Confessions (Nigel, Phoebe, Si Ying)

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Confessions (Nigel, Phoebe, Si Ying)

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CONFESSIONS

Nigel Yeo, Phoebe Sim, Goh Si Ying

1. Statement given in the police car

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If the Sergeant was made available for cross-examination and the

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The result is that our courts apply a presumption of police credibility.

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Whether there was ITP?

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3. Statements given in the Remand Prison

Took place a week after his interrogation at the police station

The police desired more detailed statements to get a clearer picture

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

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Only similarity in our case:

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Means by which the Prosecution can prove BARD

By providing a satisfactory explanation as to:

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