confession admissibility

8/13/2019 confession admissibility

1/26

CONFESSION ON

VOLUNTARINESS


2/26

1) Safee dan Wong didakwa di bawah seksyen 39BAkta Dadah Berbahaya yang membawahukuman mati jika sabit kesalahan.

2) Selepas ditahan dan disoal siasat secaraberasingan selama tujuh jam tanpa makan danminum, Safee berkata:-

Wong paksa saya lakukannya. Wong acukanpistol kepada saya dan dia kata dia akantembak saya kalau saya tak edarkanbungkusan dadah tersebut kepada penerima-penerima dalam senarai Wong.


3/26

3) Semasa persidangan praperbicaraan dan pengurusankes, peguam Safee memaklumkan bahawa Safeetelah membuat kenyataan di atas secara sukarela.

4) Akan tetapi, apabila pertuduhan dibacakan semasaperbicaraan bermula, berlaku kejutan apabila Safeedengan tidak semena-mena menjerit sambil

menyatakan yang dia sebenarnya tidak terlibatlangsung dengan pengedaran dadah itu. Dia cumamembuat pengakuan itu untuk menamatkan soalsiasat yang menyeksakan itu. Oleh itu, pengakuansalahnya itu tidak sukarela.


4/26

1) Bolehkah pihak pendakwa menggunakanpengakuan salah Safee terhadap Wong?

2) Benarkah pengakuan salah itu telah dibuatsecara tidak sukarela?


5/26

S.17(2) states that a confession is anadmission made at any time by a person

accused of an offence, stating or suggestingthe inference that he committed thatoffence.


6/26

a) S.24 which caused by inducement, threat orpromise.

b) Is made as a result of oppression.c) S.25 which that any confession to a police is

below the rank of inspector

d) S.26 where accused under police custody andnot be proved unless it was made in thepresence of Magistrate / Session Court Judge.


7/26

A confession made by an accused person isirrelevant in a criminal proceedings if the makingof the confession appears to the court to have

been caused by any inducement, threat orpromise having reference to the charge againstthe accused person, proceeding from a person inauthority and sufficient in the opinion of court togive the accused person grounds which wouldappear to him reasonable for supposing that bymaking it he would gain any advantages or avoidany evil of temporal nature in reference to theproceeding against him.


8/26

Mohamed Yusof v PP said that inducementneed not only made by direct means, it is alsosufficient for direct approach for example : from

the mannerism of speech or conduct of theperson in authority and the court was satisfyfrom the facts and circumstances that its effecton the mind of the accused is that he has to

make statement whether he likes or not. The interrogator had spoken in a rough voice

and look angry hence the statement was heldinvoluntary.


9/26

In PP v Liik Ching Kwong, Chong Siew Fai J saidthat the words youmust tell the truth or else youwill be chargedcontained the element of threat.

In Lau Kee Hoo v PP, there was evidence toshow that the accused was induced to makestatement by being told that if he signed thestatements he would be treat leniently andwould not be tried in court. The accused signed itand the court ruled that the statement was notadmissible.


10/26

The confession is not admissible if it appear tothe court that it was not voluntarily made.

In PP v Aris Bin Yunus stated that the word is notproved but appear...Whenever any sort ofdoubt creeps into the mind of the court or whenthe question of voluntariness is raised by theaccused, the better and sounder opinioncertainly is that it is for the prosecution to showaffirmatively to the complete satisfaction of thecourt the voluntary nature of the confession.


11/26

Stated that ordinarily a confession duly takenin accordance with law would be relevant, but

in the case of any doubt or when challenged,it is for the prosecution to show affirmativelyto the satisfaction of the court that theconfession was voluntary. If there is theslightest doubt or suspicion about itsvoluntary nature, the scale will be turned infavour of the accused.


12/26

The classic test of the admissibility of theaccused s confession would be applied in amanner of objective & subjective.

Objective limb is satisfy if there is a threat,inducement or promise.

Subjective limb where when the threat,

inducement or promise operate on the mid ofparticular accused through hope of escape offear of punishment connected with thecharged.


13/26

The test is simply whether the Crown haveproved the statement made by accused wasvoluntary, in that sense that it was notobtained from him either because of someperson in authority exercised fear orprejudice or heldouthope of advantage.

The prosecution must establish beyondreasonable doubt that it was voluntary & wasnot obtained either by fear or prejudice, orhope of advantage or by oppression.


14/26

Tan Too Kia v PP, the Federal Court emphasisthat the burden of proof on voluntariness is

on the prosecution who has to prove beyondreasonable doubt.


15/26

The accused was convicted for trafficking inheroin, an offence under s.39(1)(a) and 39B (2)of the Dangerous Drugs Act 1952 and he appeal

to Federal Court and the court set aside theconviction stated :it is trite law that an accused prove the statement

recorded from him is involuntary. The burdenlies on the prosecution to show positively thestatement given voluntary. There is also noburden on the accused to raise reasonable doubtas to the voluntariness of cautioned statement.


16/26

The only burden on the accused is to showsuspicious circumstances surrounding the

making or recording of the cautionedstatement. so long as the suspicion isreasonable as to the voluntariness of thestatement, it is incumbent on the trial judgeto hold it inadmissible.


17/26

In Datuk Mokhtar Hashim case is anauthority for the proposition that the

voluntariness test has been expanded toinclude within its ambit statements whichrendered inadmissible by reason obtainedunder oppression circumstances.


18/26

Oppresive circumstances should be determinedare :

a) characteristic of the accusedb) Period of time during which he was

questionedc) Length of time during he was in custodyd) Whether or not he was given opportunities

of rest and refreshments.


19/26

OXFORD DICTIONARY defined thata) Exercise of authority or power in a

burdensome, harsh or wrongful manner.

b) Unjust or cruel treatment of subjects, inferior,etcc) The imposition of unreasonable or unjust

burden.R v Priestly said that oppressionmeans something

which leads to sap and had sapped that free willwhich must exist before a confession isvoluntary.


20/26

Datuk Mohktar Hashim case state tat as tolong hours and odd hours of interrogationstated in the station diaries this would appearto be suggestive to oppression.

In PP v Tan Gong Wai the accused wasallowed no sleep and refreshments from time

he was brought into the customs office 8pm14 April 1981 until he cautioned statementwas recorded 5.15am 19 April and the courtheld that it amount to oppression.


21/26

PP v Lee Chee Meng,thecourt held that thecaution statement was not made voluntarily wasthat the police had failed to observe the Lock up

Rules and had taken outside the resting hoursfor questioning.

In PP v Mohd Fuzi bin Wan Teh & Anor, it wascontended that handcuffing an accused while heis making a statement has been held amount tooppression because an accused person shouldfeel completely free from any form of restraint .


22/26

In PP v Chong Boo See, the accused wascharged with drug trafficking. It was held thatthe court satisfied that the statement was made

freely and voluntarily and there were noinducement,threat or promise as alleged. Although no food or drinks was given as alleged,

there was no oppression as the accused wasyoung, in good health, or above averageintelligence and was mentally alert which couldnot have sapped his will.

COLLIN v R


23/26

a) It has to determine the sufficiency ofinducement, threat or promise

b) It has to clothe itself with the mentality ofthe accused to see whether the groundwould appear to the reasonable for asupposition mentioned in S. 24

c) It has to judge as a court if the confessionappears to have been caused in consequenceof any inducement, threat or promise.


24/26

To determine the admissibility of cautionstatement a trial within a trial must be held

before the confession can be admitted asevidence. Failure to hold the trial todetermine the voluntariness of the statementis fatal.

In Abdul Mahmud v PP, the question ofvoluntariness lies on the prosecution toestablish.


25/26

The prosecution have to prove beyondreasonable doubt and the defence to provebalance of probabilities that confession isinvoluntary.

When the defence suggest that theconfession was made involuntarily, it is

sufficient to hold a trial within a trial. So theprosecution must do the trial to prove that itwas voluntary made and admitted asevidence.


26/26

So in our question, the confession can be saidthat it was confessed involuntarily because

Safee in the court shouted said that he madethe statement to stop the torture he had. Hehope that the interrogation will end up andhe would not suffered the torture anymore.He made the statement just hoping he canescape from the questioning session.

Documents

confession admissibility