1994-6(2)-SAcLJ-366-Hor

THE CONFESSION OF A CO-ACCUSED

The recent holding of the Court of Criminal Appeal in Chin Seow Noiv PP that a conviction may be founded entirely on the confession of aco-accused has caused quite a stir amongst the legal profession. This

discussion hopes to analyse afresh the rationale for the admissibility ofthe confession of a co-accused and the need for supporting evidence to

sustain a conviction. It argues that although a good reason exists for theadmissibility of such confessions, they ought to be limited to statementsmade before the commencement of police investigations. It also argues

that, in view of the unique dangers associated with the use of suchconfessions, there is much wisdom in the traditional requirement of

independent supporting evidence.

I. INTRODUCTION

It must be out of the ordinary that a judicial decision on a point of criminalevidence should receive so much coverage by the press. Delivered on27 November 1993, the judgement of the Court of Criminal Appeal inChin Seow Noi v PP1 was the subject of a full page article in The SundayTimes more than 5 months later.2 Put simply, the Court held that theconfession of an accused person may, of itself, be sufficient evidence toconvict any other person implicated in the confession, if he is jointly triedwith the accused person for the same offence. Quite apart from the under-standable reaction that this significantly increases the risk of the convictionof an innocent person, the process by which the Court arrived at that resultwas unprecedented on two counts. First, the Court refused to follow along-standing decision of the Privy Council, on appeal from India,interpreting a similar provision which was in pari materia3 Secondly, and

[1994] 1 SLR 135. The judgement was delivered by Yong Pung How CJ. Karthigesu JAand Goh Joon Seng J sat with the Chief Justice. The Court of Criminal Appeal affirmedthis decision a few days later for substantially the same reasons in Abdul Rashid v PP[1994] 1 SLR 119. Indeed it was in the High Court decision in Abdul Rashid [1993] 3 SLR794 that doubt was first cast on the earlier authorities.Courts decision: for better or for worse, The Sunday Times 17 April 1994, See also theastute observations of a correspondent in the Forum page, Cross-examination vital totest truth, The Straits Times 26 February 1994.Bhuboni Sahu v The King (1949) LXXVI IA 147. Judgement was delivered by Sir JohnBeaumont, former Chief Justice of British India. This was subsequently followed by theSupreme Court of India: Kashmira Singh v State of Madhya Pradesh [1952] AIR SC 159and Haricharan Kurmi v State of Bihar [1964] AIR SC 1184. Such was the Indian distastefor the provision that in 1977, the Law Commission of India in its Sixty-Ninth Report onthe Indian Evidence Act, 1872, at 225, recommended its complete repeal. The refusal ofthe Court of Criminal Appeal to follow the interpretation of the Privy Council probablysignifies a departure from the established practice described in Khalid Panjang v PP[1964] MLJ 108 although the Singapore court seemed to be at pains to distinguish thePrivy Council decision rather than to hold that it was wrong. On the recent practicestatement, see, infra, note 5. The Malaysian courts have, in a series of Federal Court

366 Singapore Academy of Law Journal (1994)

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even more surprisingly, the Court overruled its own decision, given lessthan six months earlier,4 on the ground that it was made per incuriam.5These other decisions had held that although a co-accuseds confessionmay be used against the accused, a conviction cannot be sustained if sucha confession were the only evidence against the accused. The Court ofCriminal Appeal decided that it can.

At the heart of this judicial drama is the century-old section 30 of theEvidence Act,6 and it appears that the task of interpretation of this provisionis swept by cross currents from three different areas of the law of evidence;the law of hearsay in general, the law governing the admissibility ofconfessions and the rules relating to corroboration.7 There are really twoissues which intertwine: whether such confessions ought to be admissible

decisions, adopted this line of authority: see eg Herchun Singh v PP [1969] 2 MLJ 209,Yap Chai Chai v PP [1973] 1 MLJ 219 and PP v Nordin bin Johan [1983] 2 MLJ 221.For a convenient description of the Malaysian cases, see Mohd Akram b Hj ShairMohamed, The Evidential Value of a Retracted Confession and Confession of aCo-Accused Under Section 30 [1989] 2 CLJ 335.Ramachandran v PP [1993] 2 SLR 671. Rajendran J delivered judgement. The othermembers of the court were Yong Pung How CJ, who also sat in the Court in Chin SeowNot, supra, note 1, and Warren Khoo J. This decision was merely the latest in a proces-sion of Singapore authority which the Chin Seow Noi Court tried to distinguish, supra,note 1, pp 152154. The Court omits to mention PP v Yeo Choon Poh, unreporteddecision of the Court of Criminal Appeal, 19 October 1993, available on CAESAR, andHaron v PP [1992] 3 CLAS News 24 (HC).Chin Seow Noi, supra, note 1, has disturbing implications for the doctrine of precedentin Singapore. The Court appeared to have declared Ramachandran, supra, note 4, perincuriam on the ground that the court in that case was not presented with the fullarguments on s 30 necessary to enable it to come to an informed decision on the matterof its interpretation (italics added), at 153. However, it is clear that the court inRamachandran was fully cognisant of all applicable statutory provisions and relevant, letalone binding, authority. What is full argument to a court today may well be thoughtinsufficient with subsequent scholarship and research. On this score, all decisions, includ-ing Chin Seow Noi itself, will now run a considerable risk of being declared per incuriam.It would perhaps have been better, from the viewpoint of the doctrine of stare decisis,if the Court had decided not to follow the rules in Young v Bristol Aeroplane [1944] KB718. It should instead have declared for itself the power to depart from its previousdecisions in the same way the House of Lords in the United Kingdom does. This theCourt of Appeal (in civil matters) has done through a practice statement: [1994] 2 SLR689. It is not altogether clear whether the Court of Criminal Appeal will adopt a similarpractice. It has always been the practice of the English Court of Appeal that a full courtof seven judges may refuse to follow a prior decision in favour of an accused person. Thiswould not have availed the Singapore court here as the refusal to follow the prior decisionworked against the accused. See generally the material and comments in Beckman, CaseAnalysis and Statutory Interpretation (1992), chap 3.Cap 97 (1990 Rev Ed). The Evidence Act remains substantially the same as it has beensince it was first enacted in Singapore in 1893. S 30 has never been amended.For a very helpful account of these areas of the law of evidence, as they apply in Singapore,see Chin, Evidence ( 1988) and Pinsler, Evidence, Advocacy and the Litigation Process(1992).

6 S.Ac.L.J. The Confession of a Co-Accused 367

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at all, and this is what the law of hearsay and confessions address; and, ifso, what weight it ought to be given, which is the concern of the rulesconcerning corroboration. The developments and trends in these differentconcepts, within and amongst themselves, sometimes appear to tug indifferent directions. The import of these forces may be misapprehendedand, it is respectfully submitted, this seems be the reason why the recentdecision of the Court of Criminal Appeal rejected the established juris-prudence. This discussion hopes to explore the rationale of this enigmaticsection and to assess the conflicting interpretations that have been ascribedto section 30. It conies to the conclusion that there is indeed a rationale forit (but with one significant limitation) and that there was much wisdom inthe traditional interpretation, which, unfortunately, the Court of CriminalAppeal, in its latest decision, did not appreciate.

II. THE SEARCH FOR A RATIONALE

Section 30 provides:8

When more persons than one are being jointly tried for the sameoffence, and a confession made by one of such persons affectinghimself and some other of such persons is proved, the court may takeinto consideration such confession as against such other person aswell as against the person who makes such confession

It is not difficult to understand why this has greatly perturbed judges andjurists from the start. It is in direct contradiction to the position at commonlaw, one which had been settled for a very long time,9 and which remainsthe position in all the major common law jurisdictions:10 a confession mayonly be used against the confessor and not against any other personimplicated in the confession. There is no reason to doubt that the sectionwas the creation of the original draftsman of the Indian Evidence Act, SirJames Stephen.11 Yet one searches his writings in vain for a reason for thisstartling departure from the common law. Not a word in explanation isoffered in his Introduction to the Principles of Judicial Evidence.12Mysteriously, not only does the section disappear in his later work, A

Supra, note 6.See Cross on Evidence (7th Ed, 1990), 5834 and the authorities cited therein. For someearlier cases, see eg R v Appleby 3 Stark 34 (1821) and R v Turner [1832] Crown CasesReserved 347.This is obvious from the cases discussing the co-conspirator exception to hearsay, infra,note 22. So strongly is this held in the United States that even an express direction to thejury, at a joint trial, that the confession of the co-defendant cannot be used against thedefendant is insufficient to deal with the undue prejudice against the defendant: Brutonv United States 391 US 123 (1968).It is found in the original Indian Evidence Act, 1 of 1872 which is appended to hisIntroduction on the Principles of Judicial Evidence (1872).Ibid.


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Digest of the Law of Evidence, but an express affirmation of the commonlaw position (not found in the Indian Evidence Act) is inserted.13 To addto the uncertainty, Stephen seemed to have deliberately chosen to departfrom his usual verbal formula for admissibility, using the language ofrelevance, employing instead, for the first and only time, the phrasemay take into consideration. Thus, generations of jurists for over ahundred years have been left to divine the meaning of the section.

A. Hearsay

The extra-curial confession of a co-accused is, of course, classic hearsay. Itis an out-of-court statement tendered to prove the truth of the assertion itcontains (that the accused is guilty).14 Hearsay is generally inadmissible,both under the Evidence Act and at common law, for this reason:15

...when a witness is in court, the opponent is able to cross-examinehim in order to investigate his power of perception, test his memory,and appraise his veracity, thus enabling the trier of fact to determinethe probative value of the testimony according to the witnesssperformance in the witness-box. It is the unavailability of a hearsaydeclarant which constitutes the central reason for the exclusion ofhearsay statements.

In the context of section 30, cross-examination of the co-accused may wellbe impossible as he cannot be compelled, either by the prosecution or theaccused, to testify. The court is thus unable to assess the weight of theconfession as against the accused. Thus the confession of the co-accusedought, prima facie, to be inadmissible as against the accused. This is,however, not the end of the inquiry as there are well-recognised exceptionsto the general exclusion of hearsay. Four exceptions are of particularrelevance to section 30: res gestae, co-conspirators, confessions andunavailability.

5th Ed, 1886. Article 21 reads, ...Confessions, if voluntary are deemed to be relevantfacts as against the persons who make them only (Italics added).This is a paraphrase of the definition of hearsay suggested by Professor Cross, adoptedby the Criminal Law Revision Committee in its Eleventh Report on Evidence (General)Cmnd 4991 (1972), at 190, and which therefore is the basis of Singapores CriminalProcedure Code (Amendment) Act (10 of 1976), and, especially, ss 377381, CriminalProcedure Code (Cap 68,1985 Rev Ed). For an interesting comparison between differentconceptions of hearsay, see Tan Yock Lin, Stephens Hearsay Does It Matter?(1991) 12 Sing LR 128.Zuckerman, The Principles of Criminal Evidence (1989), 180. See also, Stephen,Introduction to the Principles of Judicial Evidence, supra, note 12, 1235.

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B. The Res Gestae Exception

Although the res gestae exceptions are not expressly so called in theEvidence Act, it is reasonably clear that Stephen has implicitly incorpo-rated such a concept into the Act.16 Thus, hearsay which is part of thesame transaction as a fact in issue is, by section 6, admissible. Conductrendered admissible under section 8(2) because it influences or is influencedby a fact in issue includes statements only if they accompany and explainacts other than statements. The requirement of contemporaneity is obviousfrom two illustrations:

illustration 6 (a) : A is accused of the murder of B by beating him.Whatever was said or done by A, B or the bystanders at the beatingor so shortly after it as to form part of the same transaction is arelevant fact.

illustration 8 (j) : The question is whether A was ravished. The factthat shortly after the alleged rape she made a complaint relating tothe crime, the circumstances under which and the terms in which thecomplaint was made, are relevant.

The reason why such hearsay is made admissible is, in the words of LordWilberforce in a leading Privy Council decision on res gestae, that:17

...hearsay evidence may be admitted if the statement providing it ismade in such conditions (always being those of approximate but notexact contemporaneity) of involvement or pressure as to exclude thepossibility of concoction or distortion to the advantage of the makeror the disadvantage of the accused.

The reliability of such hearsay is secured by the intense and unself-conscious involvement in an event.18 The potential unreliability caused bythe absence of cross-examination is thus thought to be adequatelycompensated for.

The crucial difference between section 30 and the res gestae exceptions iseasily seen. There is nothing in section 30 which requires any kind ofcontemporaneity or involvement in any event. A confession made at anytime will do. Indeed the recent cases where section 30 has been invokedinvariably concern confessions made well after the events in question, inthe police interrogation room, after prolonged and extensive questioning

This he did either through the creation of express exceptions like section 32 (unavail-ability) or through the definition of relevance, principally in ss 616.[1972] AC 378, 391. The House of Lords has affirmed this in R v Andrews [1987] 1 AllER 513. At 520, Lord Ackner directed that the trial judge should satisfy himself thatthe event was so unusual or startling or dramatic as to dominate the thoughts of thevictim, so that his utterance was an instinctive reaction to that event, thus giving no realopportunity for reasoned reflection.Supra, note 15, at 207.


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under detention. Clearly, no analogy can be drawn. There is nocountervailing guarantee of reliability because of contemporaneity orinvolvement. There is every opportunity for reflection, concoction, distortionand even suggestion.

C. The Co-Conspirator Exception

Perhaps the hearsay exception which most closely resembles section 30is what is known as the co-conspirator exception, which is dealt withspecifically in section 10 of the Evidence Act. The essential portions of itread as follows:

Where there is reasonable ground to believe that two or more personshave conspired together to commit an offence..., anything said...byany one of such persons, in reference to the common intention afterthe time when such intention was first entertained by any one ofthem, is a relevant fact as against each of the persons believed to beso conspiring...

It is clear from the leading Privy Council decision on section 10, MirzaAkbar v King-Emperor, that the essence of this exception is once again thecontemporaneity of co-conspirator hearsay:19

Where the evidence is admissible, it is admissible ... on the principlethat the thing ... spoken was something done in carrying out theconspiracy...The words...spoken may be a declaration accompanyingan act and indicating the quality of the act as being an act in thecourse of the conspiracy, or the words...spoken may in themselves bedone in the course of the conspiracy, (italics added)

How far this exception is from section 30 is explained in the subsequentwords of the judgement:20

It would be a very different matter, however, to hold that anynarrative, statement or confession made to a third party after thecommon intention or conspiracy was no longer operating and hadceased to exist is admissible against the other party. There is then nocommon intention of the conspirators to which the statement canhave reference ... [T]he distinction was rightly drawn betweencommunications between conspirators while the conspiracy was goingon ...and statements made after arrest-

Again, no convincing analogy can be drawn, and hence no countervailingguarantee of reliability can exist, in the absence of some requirement of

[1940] 3 All ER 585, 590-1. This case was adopted in the Federal Court decision inKhalid Panjang v PP (1964) 30 MLJ 108 which was delivered when Singapore was stillpart of the Federation of Malaysia.Ibid.


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contemporaneity in section 30. Indeed the common law equivalent of section10 has itself perturbed courts in jurisdictions governed by it because of theexistence of another source of unreliability in addition to the absence ofcross-examination the danger that the co-conspirator may have strongmotives to lie, for example to minimise or share his guilt, and to lie in away which is difficult to detect because his involvement in the conspiracywould allow him to fabricate details which have an air of authenticity.21 Itis perhaps in recognition of this that the common law, as does theEvidence Act, imposes the pre-condition that reasonable grounds mustexist of the fact of conspiracy and of the accuseds participation in it beforethe exception may be triggered. It has been decided on the highest authorityin the common law jurisdictions that such reasonable grounds must beestablished independently of the hearsay in question. Then, and only then,is the court allowed to use the co-conspirators hearsay to establish guilt.22As Professor Cross put it:23

[The co-conspirators] statements will have to be excluded if ittranspires that there is no other evidence of common purpose; it isanother instance of conditional admissibility.

Section 30, on the other hand, contains no such requirement on its face.As will be seen, courts which have had to deal with section 30, have byimplication imposed a very similar requirement through the phrase maytake into consideration. All this was swept away by the Court of Criminal

It is in the American literature that the issue has been most fully canvassed. See eg, Note,Criminal Conspiracy 72 Harv L Rev 920 (1959), 98390, Levie, Hearsay andConspiracy 52 Mich L Rev 1159 (1954), Davenport, The Confrontation Clause and theCo-Conspirator Exception in Criminal Prosecutions: A Functional Analysis 85 Harv LRev 1378 (1972). Brennan J in Bruton, supra, note 10, at 136, said, The unreliability ofsuch (co-defendant) evidence is intolerably compounded when the alleged accomplice, ashere, does not testify and cannot be tested by cross-examination. The American suspi-cion of the co-conspirator exception is, no doubt, partly fuelled by the presence in itsConstitution of what is known as the confrontation clause. The Constitution of the Republicof Singapore (1992 Rev Ed) has no express right to confrontation. Nevertheless, anargument could perhaps be made out that Art 9 and 12 incorporates it under the conceptof law, which includes the fundamental rules of natural justice: Ong Ah Chuan v PP[t981] 1 MLJ 64. In any event, it is submitted that the evidential concern of reliabilitymust surely cut across any constitutional differences.See generally Cross on Evidence (7th Ed, 1990), 58990. The Supreme Court of Canada(R v Carter 137 DLR (3d) 385 (1982), The Court of Appeal of New Zealand (R vBuckton [1985] 2 NZLR 257) and the High Court of Australia (Ahem v R 80 ALR 161(1988)) all held that reasonable grounds must be established by evidence independentof the co-conspirator hearsay. Anomalously, the Supreme Court of the United States inBourjaily v US 483 US 171 (1987) held (by a majority) that the co-conspirators hearsayitself could be taken into account. It is, nevertheless, clear that this was based on thewording of the Federal Rules of Evidence. The minority, at 1867, emphasise that thecommon law was never in doubt. In Canada, New Zealand and the United States, thestandard of such reasonable grounds is proof on a balance of probability. In Australia,the High Court preferred not to explain the term any further.Cross on Evidence (5th Ed 1979). This was the last edition written by Professor Cross.


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Appeal in Chin Seow Noi24 leaving admissibility unconditioned on anyguarantee of reliability. The search must go on for a rationale for section30.

D. The Law of Confessions

Section 30 is located in that part of the Evidence Act entitled admissionsand confessions. Section 30 is activated only where there is a confession.It would be understandable to ask if the rationale for section 30 is to befound by analogy with the law governing admissions and confessions ingeneral.

There appears to be two major reasons why confessions, although clearlyhearsay, are admissible against the accused person. First, a confession is adeclaration against the interest of the maker. This, it is thought, providesa sufficient countervailing guarantee of the truth of the confession. Thesimple reason being that, unless other factors show otherwise, no one wouldconfess to a crime unless he is actually guilty. This is because of the seriousadverse consequences which will be visited upon him if he is found out. Itis especially so when statements are made to the police as the makerknows that they may well be used against him. As Stephen put it, albeit inthe context of a civil matter:25

If A says, B owes me money, the mere fact that he says so does noteven tend to prove the debt...If, on the other hand, A had said, Bdoes not owe me anything, this is a fact of which B might make use,and which might be decisive of the case.

Again, one can find no analogy between section 30 and the confessionexception to hearsay. It is clear that the guarantee of reliability rests on thebasis that the statement is against the interest of the maker. Section 21 ofthe Evidence Act26 declares that [a]dmissions are relevant and may beproved against the person who makes them.... Stephen makes the samepoint in his later work, A Digest of the Law of Evidence:27 Confessions...aredeemed to be relevant facts as against the person who makes them only.It does seem far too obvious to have to say that no similar guarantee ofreliability can exist where the declarant is making a statement which isagainst the interest of another party. It is not a confession or an admissionat all, as far as the accused is concerned.

Does it matter that the hearsay incriminating the accused is contained ina statement which is, at the same time, a confession, as far the co-accused

Supra, note 1.Introduction to the Principles of Judicial Evidence, supra, note 12, 126.Supra, note 6, italics added.Supra, note 13, italics added.


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is concerned? The Privy Council in the leading decision of Bhuboni Sahuv The King speculated as follows:28

Section 30 seems to be based on the view that an admission by anaccused person of his own guilt affords some sort of sanction in supportof the truth of his confession against others as well as himself. But aconfession of a co-accused is obviously evidence of a very weak type.

The Privy Council was evidently, and quite rightly, unconvinced that thereis any semblance of a guarantee of reliability in section 30. As the LawCommission of India, studying the section almost 30 years later, reasoned:29

...a confession may be true as regards the maker, but untrue as far asit affects others. Such untruth may arise from malice, or revenge orfrom other circumstances, which one cannot readily catalogue orrecount.

The second reason for the confession exception is that the accused ishimself available in court. The lack of opportunity for cross-examinationis answered by the presence of the confessor-accused in court. ProfessorMorgan put it thus:30

The...reason (for the exclusion of hearsay) based upon the possibleinaccuracy or dishonesty of the witness is of much less force herethan in the cases where he is testifying to statements of unavailabledeclarants. He is confronting the very person he is reporting, he issubject to cross-examination by counsel who as at his elbow the personwho knows all the facts and circumstances of the alleged statementsand who is therefore in the best possible position to conduct a search-ing inquiry, and, finally, the declarant may himself go upon the standand deny, qualify or explain the alleged admissions, (parenthesisadded)

Yet again, a comparison with section 30 will show that no analogy is possible.The presence of the confessor-Co-accused in court is no answer to the lackof opportunity for cross-examination. The accused is likely to have noknowledge whatever of the circumstances under which the co-accusedconfessed. Even more crucially, neither the accused nor anyone else cancompel the accused to testify and thus subject himself to cross-examination.Not only does section 30 contain no countervailing guarantee of reliability,applying as it does to confessions, a third source of potential unreliability(in addition to the dangers of hearsay and of accomplice evidence) is

Supra, note 3, at 155.Supra, note 3, at 223.Admissions as an Exception to the Hearsay Rule 30 Yale Law Journal 355 (1921), at361.


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introduced: the significant risk of false custodial confessions.31 In all fairnessto Stephen, this is the one consideration for which he cannot be heldaccountable. The current emphasis of police investigation on the extrac-tion of confessions32 is a relatively modern phenomenon.33 Indeed, theoriginal draft of the Evidence Act contained an express prohibition on theadmissibility of custodial confessions, even for the confessor. Stephen didnot envisage the use of section 30 for such confessions.34 This is not theplace to dwell on the gross inadequacies of the legal framework governingthe taking and use of custodial confessions. Suffice it to say that theconditions of police custody and interrogation create a significant risk of

Zuckerman, supra, note 15, 303, writes: Questioning in the police station is oftenconducted under conditions of pressure and tension. Suspects under investigation arelikely to experience considerable strain even when they are innocent, while those whohave something to hide or fear may be doubly susceptible to confusion and manipulation.If one adds to this the not-unnatural tendency of the investigator to manipulate thesuspects responses and interpret them in a way that confirms his own suspicion, onerealizes that the scope for unreliability of confessions is not insignificant. Forensicpsychologist, Gudjonsson, summarises the research into false confessions in The Psychologyof Interrogations, Confessions and Testimony (1992) and concludes, at 232, that, [f]alseconfessions, which most commonly result from psychological coercion during policeinterrogation, are known to be the cause of wrongful conviction in a sizeable proportionof all cases where miscarriages of justice have occurred. The Royal Commission onCriminal Justice (1993), Cmnd 2263, at 64, reported as follows: The legal system hasalways allowed in evidence statements that are made against the interests of the makerin the belief that individuals will not make false statements against themselves. Thisbelief can no longer be sustained. Research conclusively demonstrated that under certaincircumstances individuals may confess to crimes they have not committed and that it ismore likely that they will do so in interviews conducted in police custody even whenproper safeguards apply.The Royal Commission on Criminal Justice, ibid, at 64 described the dangers of such anemphasis as follows: It is also now generally accepted that confessions have hithertotaken too central a role in police investigations...But the belief that a confession must beobtained if possible and will, if obtained be true may tempt the police to apply pressureto suspects in ways which are unacceptable and which may lead to a false confession.Once a confession has been obtained the likely consequence is that the investigation willcome to an end.Prosecution reliance on confessions seems to have grown dramatically since custodialconfessions were first made admissible in Singapore in 1960 (via the Criminal ProcedureCode (Amendment) Act 18 of 1960 and the Evidence (Amendment) Act 17 of 1960). Noempirical study has, to the knowledge of this writer, been made in Singapore, but aperusal of the reported and unreported decisions of the High Court and Court of CriminalAppeal in recent years reveal a disturbing number of prosecutions in which convictionor acquittal seemed to hinge on the admissibility of confessions.Essentially, what is now s 26 of the Evidence Act prevented the admissibility of custodialconfessions and what is now s 122 of the Criminal Procedure Code blocked the admissibilityof statements made to police officers in the course of investigation. The one notableexception was s 124 which permitted the admission of statements recorded by a Magistrate,a provision which has since fallen into disuse. Stephen shows uncanny foresight in thisterse statement from his Introduction to the Principles of Judicial Evidence, supra, note12, at 126, on the restrictive approach of his Evidence Act towards custodial confessions:They differ widely from the law of England, and were inserted...in order to prevent thepractice of torture by the police for the purpose of extracting confessions from personsin their custody.


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false confessions.35 Even if it could be reasoned that the natural resistanceto confessing falsely to ones own guilt is sufficient to overcome suchconditions, the same surely cannot be said about that portion of theconfession which incriminates, not the confessor, but someone else.

E. Reliability

It appears to be quite beyond doubt that a rationale for section 30 cannotpossibly be grounded in any consideration of reliability. The thrust of thesection seems to be that admissibility is conditioned on the accused andco-accused being tried jointly for the same offence. This is borne out bythe contrast intended by illustrations 30 (a) and (b). Whether there is ajoint or separate trial depends on an exercise of judicial discretion basedon considerations wholly independent of reliability of the confession.36Similarly, whether the accused and co-accused is charged, and thereforetried, for the same offence is entirely within the province of prosecutorialdiscretion which again is exercised on factors which have nothing to dowith the reliability of the confession.37

Indeed, as has been demonstrated, section 30 appears to introduce evidencewhich is potentially unreliable on three counts: it is hearsay and thereforenot subject to cross-examination, it is the word of an accomplice who hasthe opportunity and who may well have the motive to lie, and lastly, it isalmost always extracted under conditions which are known to greatlyincrease the risk of false statements. It is the hearsay of an accompliceextracted under custodial and interrogative conditions. It is no wonder thatgenerations of courts under three different jurisdictions, unable to denyadmissibility of such evidence, have sought to place appropriate limitationson the probative value it may bear.

F. Joint TrialsPerhaps impressed with the utter bankruptcy of any effort to justify section30 on the basis of reliability, Indian jurists have turned to the realities ofjoint trials to discover a possible rationale. It has been noted that theillustrations to section 30 do indeed seem to focus on the joint trialrequirement. Cunningham makes this attempt:38

The judges are relieved from the attempt to perform an intellectualimpossibility, that, when more persons than one are tried for anoffence, and one makes a confession affecting himself and any other

See this writers attempts to articulate this in The Confessions Regime in Singapore[1991] 3 MLJ 1vii and The Privilege Against Self-Incrimination and Fairness to theAccused [1993] SJLS 35.See the discussion which immediately follows this part.The discretion which resides in the Public Prosecutor is as hazy as it is broad and thecourts have been extremely reluctant to define, limit or interfere. See Tan, Yeo and Lee,Constitutional Law in Malaysia and Singapore (1991), chap 8.Quoted in Sarkar on Evidence (14th Ed, 1993), at 524.


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of the accused, the confession may be taken into consideration againstsuch other person as well as against the person making it. Such aconfession is, of course, in the highest degree suspicious; it deservesordinarily very little reliance; but nevertheless he need no longerpretend to do so.

In a joint trial, the confession of the co-accused is uncontroversially admis-sible to incriminate the confessor-co-accused. This is notwithstanding thefact that any person tried with him may, at the same time, be implicatedby the confession. Thus, the trier of fact would in any event get to knowthe contents of the confession. The reasoning is that it would be impossibleto expect the judge to consider the confession only with respect to theconfessor. Section 30, it may be argued, relieves the judge from the needto compartmentalise his decision making by making the confessionadmissible against all the accused.

Two criticisms spring to mind. First, if this in the reason behind section 30,it appears to be internally inconsistent. There remain two other conditionsto section 30 which cannot be so explained. The requirement of a confes-sion, by judicial interpretation, excludes admissions which do not amountto confessions. Admissions short of confessions are nevertheless still ad-missible against the maker; the result being that as far as such admissionsare concerned, the judge must still perform the supposedly impossible taskof not considering the admission when he decides on the guilt of the otheraccused persons.39 Similarly, the requirement of the same offence makesthe situation where the accused are tried for different offences (though atthe same trial) outside the operation of section 30.40 Thus where the accused

The case of Chin Seow Noi, supra, note 1, at 148151, itself is a good illustration of whatappears to be the settled view that all confessions are admissions, but only some admis-sions are confessions. The difficulty has to do with the statutory definition in s 17(2) ofthe Evidence Act of confessions as an admission...stating or suggesting the inferencethat he (the accused) committed the offence. Whereas it is easy to tell if an admissionstates that the maker committed the offence, serious problems arise when the courts tryto decide if an admission suggests the inference of guilt. This writer has, in the contextof the application of the voluntariness rule in s 24 of the Evidence Act, supra, note 34,at Ix, argued that Stephen probably meant all admissions in criminal cases to be confes-sions. On this argument suggesting the inference would simply, and not unreasonably,mean probative of. If, however, this position is rejected, as the Court of CriminalAppeal has done, it is impossible to make a convincing distinction. There is no criteriaupon which to decide how strong the inference of guilt must be before a mere admissionturns into a confession. The arbitrariness is apparent from the application of this distinc-tion in Chin Seow Noi in which some statements were held to be admissible against aco-accused but not others, but all were admissible against the maker. In the context ofs 30, this distinction makes nonsense of the argument that the section is meant to relievethe court from compartmentalising evidence.The restrictiveness of the requirement of the same offence is, to a some extent,ameliorated by the explanation in s 30 that attempt and abetment is included in the termoffence. In PP v Lai Pong Yuen [1968] 1 MLJ 12 (HC Malaya), at 14, s 30 was ruledout of operation because the offences alleged against the accused persons were ondifferent dates and because some, but not all, of the accused persons were charged inin the alternative. It was therefore not a joint trial for the same offence.

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is tried for theft and the co-accused for dishonestly receiving stolen property,the confession of the accused cannot be considered as far as the co-accusedis concerned and, again, the judge has to perform the intellectualimpossibility.

If this were the only objection, then one can save the section on principleby doing away with these restrictions; but there is one other unanswerableobjection. This kind of justification seems to rely on a rather curious ifyou cant beat em, join em logic. Surely, if the evidence ought not to beadmissible on the ground of potential unreliability, then, one should beginwith rethinking the wisdom of joint trials in such cases. The remedy ofseparate trials would just as well relieve the judge of this intellectualimpossibility but without the introduction of potentially unreliable andotherwise inadmissible evidence. The issue of joint or separate trials is wellbeyond the scope of this discussion:41 but even if it is thought that, forsome cases, reasons of consistency, public policy or economy necessitate ajoint trial, the law should attempt to prevent the judge from consideringevidence which is in the highest degree suspicious, rather than to sanctionand encourage its use. Where unduly prejudicial material cannot be shieldedfrom the court, the law should try to prevent the trier of fact from actingon such prejudice, and not throw in the towel and enjoin him to act on it.Judges can and do perform such intellectual feats in the interest of justice.Judges are expected to erase from their minds the content of inadmissiblehearsay, similar fact or confession evidence which may have come to theirknowledge in the course of the trial.

G. Unavailability of the DeclarantThere is one other analogy which has to be explored, and it is here thatone finds the most favourable argument for the existence of section 30.The maker of the statement (the declarant) cannot be called to testify,either by the prosecution or by the co-accused. This is a particularmanifestation of the privilege against self-incrimination, accorded to theaccused ever since he was permitted to testify,42 and preserved in section


S 176 of the Criminal Procedure Code governs the courts discretion to order joint orseparate trials. For a recent application of this provision, see Tse Po Chung Nathan v PP[1993] 1 SLR 961 (CCA). See also Charlie Tay v PP [1967] 2 MLJ 289 (HC), Tan KhengAnn v PP [1965] 2 MLJ 108 (FC Singapore) and Loh Shak Mow v PP [1987] 1 MLJ 362(HC). In the context of avoiding the prejudicial effect of the confession of a co-accused,United States law requires either a severance of the trial or the rejection of the confes-sion: Bruton, supra, note 10. The Supreme Court has, nevertheless, encountered somedifficulty with redacted and interlocking confessions: see Aviva Jezer, The Right toConfrontation in CoDefendant cases: Richardson v Marsh and Cruz v New York (1989)74 Cornell L R 712. In the United Kingdom, severance is rarely ordered for this reasonbecause of time, money and the desirability that the same verdict and the same treat-ment be returned against all those concerned in the same offence: Lake (1977) 64 CrAp Rep 172 (CA), at 175. For a Canadian discussion, see Kaufman, The Admissibility ofConfessions, (3rd Ed, 1979), 321-327.The privilege of the accused not to testify can be traced back to the UK CriminalEvidence Act 1898, the legislation which first made the accused a competent witness onhis own behalf.

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122(3) of the Evidence Act.43 The declarant is, by virtue of this privilege,unavailable to testify for the prosecution and it may well be that the onlypossible evidence is his hearsay statement.

The obvious analogy is with section 32, which appears in that part of theEvidence Act entitled Statements by persons who cannot be called aswitnesses. It is immediately apparent that there are differences betweenthe two sections. The causes of unavailability of the declarant are specifi-cally listed under section 32: dead, cannot be found, has becomeincapable of giving evidence and cannot be procured without unreason-able delay or expense. These cannot apply in a case where the declarantis in court but cannot be compelled to testify because he is the accused.Secondly, unavailability under section 32 is an exception to the hearsayrule only in a number of specific circumstances, for example, where thestatement relates to the cause of death of the declarant and where it ismade in the ordinary course of business. Again, section 30 statements donot fall under any of these circumstances. Nevertheless, the rationale forsection 32 appears to be that the declarant cannot be called as a witnessand therefore no better evidence is to be had.44 There seems to be nogood reason why this principle should be limited to either the listed causesof unavailability or the specified circumstances found in section 32.

The comparatively new section 378 of the Criminal Procedure Code45 is,however, largely shorn of these seemingly arbitrary restrictions. Here theanalogy is even closer. There are no specified circumstances under thissection. There remains a list of causes of unavailability. What is note-worthy is the inclusion of the case where the declarant refuses to testify intwo situations: firstly, when he is compellable and secondly, when he iscompetent to testify on behalf of the prosecution but not compellable. Thesecond situation is closest to section 30 except that the accused is notcompetent to testify for the prosecution. Again, if the rationale of section378 is that some (albeit hearsay) evidence is better than none, then itshould not, in principle, matter whether the declarant refuses to testify or,by virtue of the privilege against self-incrimination, is not competent totestify for the prosecution. One objection to this analogy may be that,unlike the situations mentioned in section 378, in the case of the unavail-ability of the co-accused, the prosecution does have an alternative. It couldchoose not to proceed against the co-accused, and then compel him totestify against the accused. However, it does not appear to be in the publicinterest to force the prosecution to let at least one of the potentialco-accused go unpunished to proceed against the rest. Wherever possible,all the partners in the crime ought to be brought to justice.

The Criminal Procedure Code (Amendment) Act (10 of 1976) left this privilege untouched,save that it now comes with the cost of adverse inferences being drawn from failure totestify.These are the words of Stephen, supra, note 12, at 126.Supra, note 14.

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The far more serious objection to any simple analogy with section 378 isto be found in the section which follows, section 379. This provision makesa significant limitation to section 378. Such hearsay statements shall not beadmissible in any criminal proceedings...if it was made after thecommencement of investigations into the offence, the subject matter of theproceedings (italics added). This stands in stark contrast to the positionof an out-of-court (and therefore, hearsay) statement which is sought to beused against the declarant himself which, by section 122(5) of the CriminalProcedure Code, is admissible whether it is made in the course of policeinvestigation or not. The distinction is deliberate. The reason is that thepotential for concoction and distortion of statements given in the course ofpolice investigations (which, of course, includes all custodial statements),which is already considerable in the case of the use of statements againstthe declarant, becomes unmanageable when it comes to its use againstother people. Conditions of custody and interrogation and the realisationthat one is under serious suspicion of committing a crime is fertile groundfor unreliable statements even against self, but more so against others. Thecountervailing guarantee of reliability which is thought to attend statementsagainst the interest of the declarant is absent. There is no opportunity forcross-examination.46

H. Admissibility: Rationale and Reform

The search for a rationale for section 30 comes to this. The confession ofa co-accused is hearsay and therefore fraught with the traditional hearsaydangers. There being no convincing countervailing guarantee of reliability,the reason for its admissibility must rest on the unavailability of thedeclarant, which is the result of his privilege against self-incrimination.Unavailability is historically, and on the principle that there may otherwisebe no evidence, a legitimate reason for an exception to the generalinadmissibility of hearsay. On the other hand, where the hearsay of theco-accused is at the same time a statement given in custodial and inter-rogative conditions, additional dangers of concoction and distortion arise;dangers which cannot be tested by cross-examination. This suggests that asection 30-type exception to hearsay is justified provided it is limited tostatements made before the commencement of police investigation,consistently with the language of section 379.

On the other hand, if unavailability is the basis of section 30, a number ofrestrictions are now found in the section are unnecessary. It should applyto all statements which are sought to be adduced at the trial, and not justto confessions, which requirement seems, as discussed above, to havebeen based on an erroneous assumption of reliability. This would also savethe courts from the rather arbitrary task of teasing apart confessions fromadmissions.47 Similarly, the accused and the co-accused need not be tried

See the discussion above on the law of confessionsSee discussion at supra, note 39.

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for the same offence so long as they are jointly tried, the co-accusedbecomes unavailable. Finally, there is no reason to limit the use of section30 statements to situations where they are to be admitted against theaccused the co-accused is equally unavailable where the accused wishesto use section 30 statements in his favour.48

Indeed, this would have been the position had the draftsman not omittedone sub-section from the recommendations of the Criminal Law RevisionCommittees llth Report when Singapore adopted its proposed hearsayreforms in 1976.49 It is suggested that this sub-section (which follows thedraft of the llth Report, with appropriate changes for Singapore) bere-introduced into section 378 of the Criminal Procedure Code:50

Subject to the rules of law governing the admissibility of confessionsand statements made to the police and other law enforcement officials,in any proceedings in which two or more persons are jointly tried, astatement made, whether orally or in a document or otherwise, byany of the accused may be given in evidence by the prosecution asevidence of any fact stated therein of which direct oral evidencewould be admissible, notwithstanding that the maker has not beencalled as a witness in the proceedings; and any statement given inevidence by virtue of this subsection shall be admissible as evidenceof any such fact in relation to each of the accused.

This sub-section would create the exception to the rule against hearsaywhich would then be automatically limited to statements made before thecommencement of investigations by virtue of the following section, section379. Section 30 of the Evidence Act, which covers the same ground, oughtthen to be deleted. Paradoxically, this would substantially restore theoperation of section 30 to that which was probably envisaged by Stephenbecause, as has been discussed, when he drafted the section, statementsmade in the course of police investigation, and custodial statements inparticular, were generally inadmissible and thus could not have been thesubject of section 30.

This change would mean that in cases such as PP v Virat [1993] 2 SLR 9 where aco-accused made a statement exonerating the accused, the accused would be able to usethe statement to support his defence.It is not easy to discern why this provision was left out. It could have been because s 30of the Evidence Act already dealt with the subject matter. The draftsman could not buthave been aware of the established jurisprudence on s 30 (that there must be supportingevidence) and was content to leave it alone.Supra, note 14, at 190 and the explanation at 1456.

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III. PROBATIVE VALUE

Nevertheless, section 30 stands as it has stood for over 100 years in Singaporeand the courts are faced with the task of deciding what it means. Clearly,the words of the section preclude any argument in favour of the rule in


common law that confessions can only be used against the confessor. Thejudges could not deny admissibility. Yet because of the double danger ofevidence which is both hearsay and which proceeds from an accomplice(and, in the case of confessions made after the commencement of investi-gations, the third danger of statements made in custody), the unanimousjurisprudence of the pre-Chin Seow Not decisions had decided to placelimitations on the probative value of section 30 confessions.51 Murray-Aynsley CJ (Singapore) expressed this approach very neatly:52

Section 30 of the Evidence Enactment, which alone makes it possibleto consider such a confession, merely says that the Court may takeinto consideration such confession. No legislation can add to the valueof such a confession as evidence. We consider that its value is lessthan that of the evidence of an accomplice because it was made in theabsence of the appellant (accused), was not made on oath nor subjectto cross-examination, and usually in such cases the person makingthe confession attributes the chief blame to others, (parenthesis added)

The value which the courts gave to a section 30 confession is described bythe Court of Criminal Appeal in Ramachandran as follows:53

...it is abundantly clear that the confession of a co-accused can onlyplay a supportive role in a criminal prosecution. It cannot by itselfform the basis of a conviction.

Faced with potentially suspect evidence, the courts reached out for theonly other device they knew - corroboration.54 They imposed a mandatorycorroboration requirement on section 30 confessions. This is precisely theproposition which appears to have been overruled in Chin Seow Noi.

Supra, notes 3 and 4.Koh Ah Chua v PP (1948) 14 MLJ 11 (CCA Johore), at 12.Supra, note 4, at 680.The cases do not expressly use the term corroboration and, perhaps, advisedly so. Itappears that Stephen in s 159 of the Evidence Act had adopted a conception of corrobo-ration which is opposed to that which was later authoritatively accepted for the commonlaw in R v Baskerville [1916] 2 KB 223 (CA). The common law requires independentsupporting evidence, but Stephen seemed to have countenanced supporting evidencefrom the same source, and in particular, prior consistent statements. This has given riseto some confusion in the local jurisprudence, some cases accepting Stephens view andothers that of the common law. This is well described in Chin, supra, note 7, at 2014,and Pinsler, supra, note 7, at 21922. See also the most recent discussion in Tan YockLin, Direction in the Law of Corroboration (1993) Sing LR 96. The term is used in thisdiscussion in its non-technical sense of supportive evidence, unless the context requiresotherwise.

51525354

A. Corroboration

There is no doubt that Bhuboni Sahu was in all probability influenced bythe general requirement of corroboration for accomplice evidence. AlthoughStephen, ahead of his time, had intended a more flexible approach in


which the court had the discretion to presume...that an accomplice isunworthy of credit and his evidence needs to be treated with caution,55the judges seemed to have imported the common law rule of prudence souniversally followed that it is unsafe to act on the evidence of an accomplice

56

The analogy is easily made: if even the testimony of an accomplice, whichis subject to cross-examination, requires corroboration, all the more shouldthe hearsay of the co-accused require supporting evidence. As the PrivyCouncil in Bhuboni Sahu summed up, It (a section 30 confession) is amuch weaker type of evidence than the evidence of an approver(accomplice).57

Over the years, however, the common sense rule of prudence began tocrystallise into a set of inflexible and overly technical steps which the judgehad to go through each time accomplice evidence was presented. This isnot the place to rehearse the ills of what is known as the accomplicerule.58 Suffice it to say that the courts had considerable problems tryingto decide exactly what accomplice and corroboration meant. Juristsbegan to wonder whether there was any point in the whole exercise as,even if no corroboration existed, the judge had still to decide if the accom-plice could, nevertheless, be believed notwithstanding the absence of cor-roboration. This sentiment culminated in the recommendations of theCriminal Law Revision Committees llth Report (which we have comeacross in the context of section 378 as a new exception to hearsay) whichwas adopted in Singapore.59 Section 135 of the Evidence Act was amendedin 197660 to read:

...any rule of law or practice whereby any rule of law or practicewhereby it is obligatory for the court to warn itself about convictingthe accused on the uncorroborated testimony of the an accomplice ishereby abrogated.

It has come full circle and Stephens flexible discretionary approach has,at last, been vindicated.

The Court of Criminal Appeal in Chin Seow Not placed great emphasis onthis amendment. Although it was never clearly explained exactly how thischange is relevant to section 30, the reasoning must be that the winds of

S 116 illustration (b), Evidence Act.Bhuboni Sahu, supra, note 3, at 152. See the similar position in Malaysia and Singapore(before the amendments in 1976 discussed below) in Chin, supra, note 7, at 2057, andPinsler, supra, note 7, at 2069.Supra, note 3, at 155.See the critical comments of the Criminal Law Revision Committee, supra, note 14, at10621 and the more recent analysis in Zuckerman, supra note 15, chapter 10.Ibid, at 110.Evidence (Amendment) Act 11 of 1976. For an assessment of this amendment, see TanYock Lin, supra, note 54, at 14550.

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unless it is corroborated in material respects so as to implicate the accused.

change which blew over the accomplice rule swept section 30 as well. Thisjustification of this spill-over effect is, however, not altogether veryconvincing. The chronology of the matter rules out any direct relevancewhich the amendment to section 135 may have on the interpretation ofsection 30. The wording of section 30, it has been noted, has not changedsince the legislation was introduced into Singapore in 1893. An inter-pretation of those words can surely draw no support from an amendmentmade to the entirely different section 135 in 1976, some 83 years later.61

Could the Court of Criminal Appeal then have appealed to the policy orprinciple behind the 1976 amendment? In a nutshell, the 1976 amendmentsenabled the courts to treat the accomplice witness as any other witness. Itis not that judges should now trust accomplices more than before, but thatall the usual indicia are available to the judge to assess the credit of theaccomplice. He is in court to give evidence. The manner in which he giveshis story may be observed and his demeanour studied. Most importantly,the judge has the opportunity to witness the cross-examination of theaccomplices account by the accused or his counsel. It requires no leap ofimagination to see that the judge who encounters a section 30 confessionhas absolutely none of these opportunities to consider the value of thehearsay. The court is likely to be faced with a bare statement implicatingthe accused. The crucial difference here is that a section 30 confession isnot the testimony of an accomplice, but the hearsay of a co-accused. Thereis no inconsistency in requiring corroboration for section 30 confessions,but not for accomplice testimony.

B. may take into consideration

Is there, on the other hand, any indication in the Evidence Act that asection 30 confession does indeed require supporting or corroboratingevidence? The Court of Criminal Appeal in Chin Seow Noi was convincedthat:62

There is nothing in the section or in the Act itself would point ineluct-ably to the conclusion that there must exist independent evidenceagainst the co-accused before the confession of the co-accused can beused against him.

If the Court meant that there is no express requirement of corroboration,that is not disputed. Nevertheless, the verbal formulation used in section30 is unique in the entire legislation. In almost every section where Stephen

The Chief Justice was himself keenly aware of the danger of using modern amendmentsto interpret the original provisions of the Penal Code (Cap 224) in his dissenting judge-ment in Fo Son Hing v PP [1994] 2 SLR 561.Supra, note 1, at 159.

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intended to make evidence admissible, he has used the language ofrelevance or proof. Indeed, section 5 goes so far as to lay down that:

Evidence may be given in any suit or proceeding of the existence ornon-existence of every fact in issue and of such other facts as arehereinafter declared to be relevant and of no others, (italics added)

As the Court of Criminal Appeal itself had earlier observed inRamachandran :63

Section 30 of the Act does not declare the confession of an accusedwhere it incriminates a co-accused to be relevant as against theco-accused. All that s 30 provides is that the court may take intoconsideration such confession as against the co-accused.

In contrast to this unusual wording, section 21, for example, simply providesthat [a]dmissions are relevant and may be proved as against the personwho makes them (italics added). Linguistically, therefore, it is reasonablypossible that Stephen intended section 30 confessions to have a limitedprobative value and it is this possibility which the courts have seized becauseof the many reservations the judges have had with respect to such evidence.Indeed this long-standing interpretation becomes more than a reasonablepossibility when we turn to section 10 of the Evidence Act, theco-conspirator exception to the hearsay rule. This section, unlike theprovisions amending the accomplice rule and confession evidence manyyears later (but which appeared to impress the Court of Criminal Appeal),was drafted contemporaneously with section 30. It will be rememberedthat the hearsay of a co-conspirator is admissible only if it was made inreference to their common intention. Even with this guarantee of reli-ability which this requirement of contemporaneity offers, the hearsay of aco-conspirator can only be used if there is reasonable ground of both theconspiracy and of the participation of the accused in the conspiracy. Inother words, the hearsay of a co-conspirator cannot be the foundation ofa conviction but only to top up evidence, independent of the hearsay,against the accused. Section 30 confessions may be made at any time.There is no requirement of contemporaneity. There is no conceivable reasonwhy the hearsay of a co-accused should carry more weight than the hear-say of a co-conspirator. It is no wonder that the courts have traditionallygiven section 30 confessions a similar limited effect. It is unfortunate thatsection 10 was not considered by the Court of Criminal Appeal.64

Supra, note 4, at 677.The concern of the Court in Chin Seow Noi, supra, note 1, at 159, that this narrowerconstruction would emasculate s 30 is unfounded. S 30 would not be any more emas-culated than section 10 or, for that matter, prior consistent statements under s 159, bothof which cannot, in themselves, sustain a conviction, but which may be used against theaccused, in conjunction with other evidence. S 30 confession can, in the words of thePrivy Council in Bhuboni Sahu, supra, note 3, at 156, be put into the scale and weighedwith other evidence.

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C. evidence

It is perhaps appropriate at this point to deal with the second reason whichthe Court of Criminal Appeal in Chin Seow Noi gave for rejecting theapproach in Bhuboni Sahu. The Court explained that the definition ofevidence in the Indian Evidence Act did not cover section 30 confes-sions and that this was used by the Indian courts to support the positionthat such confession can only have a limited probative value. However, theCourt continued, the Evidence Act of Singapore, unlike its Indian counter-part, gave an open-ended definition of evidence which may include section30 confessions, and therefore this indicated that section 30 was not meantto have a limited probative effect in Singapore.65 It cannot be denied thatthe Indian courts have exploited the narrower definition in the Indian Actto buttress their conclusion that section 30 ought to be read restrictively.66However, it is equally clear that this kind of argument is an excuse ratherthan a reason for the conclusion. As the Privy Council in Bhuboni Sahuitself said:67

Section 30, however, provides that the court may take the confessioninto consideration and thereby, no doubt, makes it evidence uponwhich the court may act; but the section does not say that theconfession is to amount to proof, (italics added)

The Indian courts have always been aware that, whatever the definition ofevidence was technically, section 30 made the confession of theco-accused evidence in reality.68 The open-ended definition in the SingaporeAct only served to harmonize section 30 with the definition of evidence.It should certainly have no effect on the probative value to be ascribed tosection 30 confessions or the interpretation of the phrase may be takeninto consideration. Indeed, the Court of Criminal Appeal itself was wellaware of this distinction between the Indian and the Singapore Act inRamachandran, but there the Court held:69

What our Evidence Act does is to recognize that an exhaustivedefinition of evidence will not sit well with sections of the Act, suchas s 30, which permit the court to consider matters which fall outside

Supra, note 1, at 1567.The Privy Council, for example, said of s 30 confessions in Bhuboni Sahu, supra, note 1,at 155, It does not indeed come within the definition of evidence contained in s. 3 ofthe Evidence Act.Ibid, at 156.The perceived conflict between reality and definition may perhaps explain this rathercontorted description in Sarkar on Evidence, supra, note 38, at 538,: Under s 30 aconfession of a co-accused has to be regarded as amounting to evidence in a general way.Though it may be regarded as evidence in a generic sense, the fact remains that it is notevidence as defined by section 3.Supra, note 4, at 678.

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the definition. We are of the view that the differences in the wayevidence is defined in our Act and the Indian Act do not make anydifference to the principles enunciated in the above (Indian) cases,(parenthesis added)

D. confession

There remains the final point which appeared to have impressed the Courtof Appeal in Chin Seow Not. The Court observed that the Indian Act gaveonly a limited scope to the admissibility of confessions in general: con-fessions given to police officers in the course of investigation or whilst inthe custody of the police are inadmissible. In Singapore, the Court said,there is s 122(5) of our Criminal Procedure Code, a widely draftedprovision which made admissible statements made by an accused at anytime to, or in the hearing of, a police officer of the rank of sergeant andabove.70 The significance which the court attached to this difference isnot easy to follow. The Court seemed to have reasoned that the moreliberal policy in the admissibility of confessions (against the confessor) inSingapore somehow supported the proposition that the probative value ofsection 30 confessions (against, not the confessor, but the co-accused) shouldbe unencumbered with any requirement of corroboration.

First, it ought to be said that this more liberal position with respect toconfessions in general dates back to no earlier than 1960 when the firstancestor of section 122(5) of the Criminal Procedure Code was introducedin Singapore. Before that, the position in Singapore was largely the sameas that which prevails in India.71 Again, as with the 1976 amendments tothe accomplice rule, it is difficult to understand how an amendment madeso many years later to an entirely different section may affect the inter-pretation of section 30, which remains untouched till today. Secondly,whatever policy the Legislature chose to pursue with respect to the admissi-bility of confessions against the confessor, it can surely have no effect onthe probative value of confessions against the co-accused. The admissibilityof section 30 confessions have never been in doubt only their probativevalue. None of the amendments which have resulted in section 122(5) ofthe Criminal Procedure Code have any prescription as to probative value.72

Supra, note 1, at 1578.For an account of this and subsequent legislative changes, see Mohamed Bachu v PP[1993] 1 SLR 259 (CCA), at 2636.The Court appears to conflate the two separate issues of admissibility and weight. InChin Seow Noi, supra, note l,at 157, the Court finds significant the rather more limitedscope of admissibility provided for in the Indian Evidence Act. Again, In Abdul Rashid,supra, note 1, at 130, the Court felt that we adopt a much wider approach towardsevidence, on the basis that as much relevant evidence as possible should be put beforea court in order for it to assess its value. This is unfortunate as it has always beenpossible, either in India, Malaysia or Singapore, to put a s 30 confession before a court.It is in the assessment of its value that the established jurisprudence has sought to ensurethat there must be supporting evidence before conviction may follow.

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The point really was that the Court felt that the use of confessions againstthe co-accused under section 30 ought to be treated no differently from theuse of confessions against the confessor. The Court said:73

No distinction is made in s 30 or, indeed, within the Act itself betweenthe manner in which a confession may be used against the co-accusedand its use against the accused person...[T]he plain and literal mean-ing of s 30, read together with illustration (a), is that the confessionof a co-accused may be made part of the substantive evidence againstthe accused in the same manner it forms part of the evidence againstthe confessing co-accused. It is trite law that an accused person maybe convicted solely on the basis of his confession, (italics added)

It ought to clear from the argument that has gone on before that there aresubstantial, if not compelling, reasons to justify a different treatment forsection 30 confessions as opposed to the use of confessions against theconfessor. Only a summary is necessary at this point. Textually, undersection 30 the court may only take into consideration the confession ofthe co-accused, whereas under section 21, confessions are deemed relevantand may be proved against the confessor. Secondly, a section 30 confes-sion does not have the countervailing guarantee of reliability, as does anormal confession, based on common experience that one is unlikely tomake a declaration against self-interest unless it is true. Finally, unlike thecase of regular confessions, an accused faced with a section 30 confessionis unlikely to be in a position to challenge it effectively as he probably hasno knowledge of the circumstances under which it is given and he cannotcompel the maker to take the stand to be cross-examined on what he (themaker) has said.It is significant that, even with respect to normal confessions, what theCourt of Criminal Appeal described as trite law that an accused personmay be convicted solely on the basis of his confession74 has come undervery heavy fire in recent years. In the United Kingdom, there has beengrowing concern that this trite law has resulted in serious miscarriages

Supra, note 1, at 1589.Supra, note 1, at 159. The preponderance of cases appear to support this view: see egIsmail bin UK Abdul Rahman v PP [1974] 2 MLJ 180 (CCA), and in Malaysia, Yap SowKeong v PP (1947) 13 MLJ 90 (CA Malayan Union). In none of these cases is there anyextended argument supporting this conclusion. There is however another strand ofauthority which appears to have held otherwise: In Chua Beow Huat v PP [1970] 2 MLJ29 (HC Malaya), at 35, Sharma J held that [w]hen, however, the (confessional) state-ment is retracted at the trial, corroboration should as a rule be necessary in order tosatisfy the court that the statements can be acted upon (parenthesis added). Whenpresented with the opportunity to decide the issue, the Privy Council in Osman v PP[1968] 2 MLJ 137 (Singapore), tantalizingly refused to take it. See Tan Yock Lin, supra,note 54, at 1312 and Mohd Akram, supra, note 3.


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of justice following the wrongful convictions (based solely on the confes-sions of the accused) of the now celebrated Guildford Four.75 Studies offorensic psychologists have since revealed that people can and do confessfalsely under custodial and interrogative conditions.76 Evidence scholarshave begun to put a strong case for the requirement of corroboration evenwhere a confession is used against the maker.77 No doubt the law in theUnited Kingdom has not yet changed, but the strength of the challenge isreflected in the Report of the Royal Commission on Criminal Justice 1993.The Commission was unable to come to a unanimous conclusion on thisdifficult issue.78 The reason for the difficulty is easily culled from theReport. The disenchantment with the technicalities of the traditionalcorroboration rules clash with the need to place some probative limitationon the use of custodial confessions. The result was a split decision. Theminority would have recommended that a conviction should never bebased on a confession alone and that there should always be supportingevidence. Even where there is supporting evidence, the minority thoughtthat the judge should give the jury a strong warning about the need forcaution before relying on the confession evidence. The majority agreedwith the minority that in all cases, a strong warning should be given andthat the jury should be advised to look for supporting evidence. The ma-jority, however, decided against a strict corroboration requirement. It oughtto be remembered that the majority recommendation was concerned onlywith confessions which has passed the tests laid down in PACE (thePolice and Criminal Evidence Act 1984). This legislation had significantlyreformed the law governing custody, interrogation and the taking of state-ments from the accused. Briefly, it sought to improve the reliability ofpolice statements and confessions by requiring contemporaneous writtenand tape records, by allowing counsel to be consulted before and duringinterrogation, and by clear rules concerning the treatment of suspects duringcustody and interrogation.79 There is no comparable legislation in Singa-pore, where the legal regime for interrogation and statements remains

See The Report of the Royal Commission on Criminal Justice, supra, note 31, at 628. Thecase of the Guildford Four was celebrated in the recent film In the Name of the Father.See Gudjonsson, supra, note 31.See eg Pattenden, Should Confessions be Corroborated 107 LQR 317 (1991) and Choo,Confessions and Corroboration: a Comparative Perspective [1991] Crim LR 867.Supra, note 31, at 68. Neither was the High Court of Australia undivided on the matter.In McKinney v The Queen (1990-91) 171 CLR 468 the majority opted for the classiccorroboration solution and held that, as a rule of practice, the jury ought to be cautionedof the danger of convicting on the basis of an uncorroborated custodial confession. Theminority disagreed, emphasising the defects of the corroboration rules: see W G Roser,McKinney and Judge: Corroboration and a New Category of Unreliable Evidence[1994] ALJ 27.For a good description of these reforms, see Berger, Legislating Confession Law inGreat Britain: A Statutory Approach to Police Interrogation 24 University of MichiganJournal of Law Reform 1 (1990).

75

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78

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The Confession of a Co-Accused6 S.Ac.L.J. 389

largely the way it was when custodial statements were altogether inadmis-sible.80 It seems almost superfluous to say that these arguments apply afortiori to the use of section 30 confessions.The Court of Criminal Appeal did, in a short paragraph, try to allay someof these fears:81

We would point out, however, that ultimately the assessment of theweight to be accorded to a co-accuseds confession lies with the court.We are confident that our courts, in assessing the evidentiary valueof a co-accuseds confession against the accused, will take into carefulconsideration the incentive that the co-accused might have to lie.

The point is not that we cannot trust our judges to assess probative value,but that our judges can only perform this function satisfactorily wheresufficient material is before them. We cannot expect them to make anaccurate assessment when all that is before them is a piece of paper uponwhich the words of, supposedly, another person are written. They do nothave the account of any disinterested party concerning what had happenedin the interrogation room. Neither do they have the benefit of observingthe witness in examination-in-chief or in cross-examination to determine ifthere is any incentive to lie, or if there has been concoction, distortion ormisapprehension.

E. Probative Value and Reform

If, as has been suggested above, section 30 were limited to pre-investiga-tion statements, it becomes less urgent to decide if supporting evidence isnecessary, as one potential source of unreliability (that of custody andinterrogation) is now removed.82 Nevertheless, even pre-investigation

Supra, note 35. The requirement of a written record is hamstrung by what appears to bethe express admissibility of oral statements under s 122(5) of the Criminal ProcedureCode: see the lucid summary in the judgement of Rajendran J in PP v Lim Young Sien,unreported High Court decision, 21 January 1994, available on CAESAR. The recentdecision of the Court of Criminal Appeal in Jasbir Singh v PP [1994] 2 SLR 18, is notpromising for the development of a vibrant right to counsel; the Court felt that a 2 weekdelay in allowing a suspect to consult with his lawyer was not unreasonable although noparticular reason was given to justify it. Earlier, the Court of Criminal Appeal appearedto have indicated, reversing the decision of the High Court, that only a very high levelof bad treatment during detention would justify a rejection of statements obtained, par-ticularly in the context of giving food and drink during custody and interrogation: FungYuk Shing v PP [1993] 3 SLR 421, at 4256, [1993] 3 SLR 69 (HC).Supra, note 1, at 159.This, perhaps, explains why the Criminal Law Revision Committee, supra, note 14, wascontent to leave the assessment of probative weight to the discretion of the court. Evenso, s 381 directs the court to have particular regard to whether or not the statement wasmade contemporaneously with the occurrence or existence of the facts stated, and to thequestion whether or not the maker of the statement had any incentive to conceal ormisrepresent the facts. As far as the hearsay of a co-accused are concerned, it ought tobe clear from the discussion above that both considerations point strongly to the need forsupporting evidence.

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IV. SUMMARY AND CONCLUSION

It has been argued that, on principle, only pre-investigation hearsaystatements of co-accused persons ought to be admissible. Statements of theco-accused obtained whilst in custody are infected not only with the twinsources of hearsay and accomplice unreliability, but also with the dangersassociated with reliance on custodial statements. Section 30, however, forhistorical reasons, draws no such distinction and appears to admit con-fessions of a co-accused made at any stage. It has also been argued thatbecause of these potential sources of unreliability and because of thepeculiar difficulty which the courts are likely to encounter in assessing theprobative value of the confession of the co-accused, a conviction cannot bebased thereon without some supporting evidence. This is the unanimousposition of the courts in India and Malaysia, and in Singapore before ChinSeow Noi. This decision, it is respectfully submitted, was made on groundswhich do not support its conclusion and which was made without adequateregard to the unique conjunction of dangers associated with section 30confessions. It has placed the innocent in serious and, with respect,intolerable risk of conviction, a possibility which any criminal justice systemcan ill afford, let alone one which countenances extremely severe, andoccasionally irreversible, punishment on those who are found guilty.

MICHAEL HOR*

LLB (NUS), BCL (Oxon), Advocate and Solicitor (Singapore), Senior Lecturer, NationalUniversity of Singapore.


statements are the hearsay of an accomplice. It ought to be rememberedthat in India, the jurisdiction in which the requirement for supportingevidence first arose, only pre-investigation statements are admissible, evenfor the maker. It has been argued that the appropriate analogy to bedrawn is with neither accomplice evidence (for which there is opportunityfor cross-examination), nor with confession evidence (where the makermay challenge it effectively by his knowledge of the circumstances underwhich it was made and by himself taking the stand), but with section 10the co-conspirator exception, where reasonable ground to believe in theaccuseds participation in a conspiracy must be independently shown beforethe hearsay of a co-conspirator may be used. This provides cogent supportfor the traditional interpretation which has been placed on section 30 andargues strongly for its retention. If, however, section 30 is to admit, as itnow does, even custodial statements, all the more should the long-standingrequirement for supporting evidence be upheld, and perhaps evenentrenched in express legislation.

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Documents

1994-6(2)-SAcLJ-366-Hor