Lecture 7 STATEMENTS TO THE POLICE Most evid is by way of statements and accused confessions very impt, usually challenged, very impt in crim trials

Types of statements a. FIR s115 CPC: statement recorded by poclie at police station when informant lodges police report b. statements taken during interview/examination - s121 c. statements taken from accused after being charged - s122(6) eg confessions/ admissions of certain facts/ mixed statements eg exculpatory statements altogether Power to record statements arises under ss 121 & 122 CPC - Power to record statements exercisable upon receipt of FIR disclosing o a. seizable offence can ex power to record long and caution statement o b. If non-seizable offence, order of Magistrate / PP required cannot straightaway ex power under 121 and 122, req ordr of magistrate or public prosecutor (s116(2)) - see NP299 form o police station whee statement recorded; date and time; name of informant informant to give report of what happened; then signed by officer and informant; then IO assigned to investigate offence o usually very short, though can also be in some detail. Relevant provisions : a. sections 17-32 EA b. sections 121-123 CPC Statements under s 121 CPC (long statements) Section 121 CPC : (1)A police officer (for all other types, this does not apply unless in their parent legislation this section is referred to) making a police investigation may examine orally any person supposed to be acquainted with the facts and circumstances of the case and shall reduce into writing any statement made by the person so examined. (2)Such person shall be bound to state truly the facts and circumstances with which he is acquainted concerning the case except only that he may decline to make with regard any fact or circumstances a statement which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. : - right against self incrimination when police records statement, suspect has this right (3)A statement made under this section shall be read over to him and shall, after correction if necessary, be signed by him. the procedural reqts of recording of long statement A. Who can a section 121 statement be taken from?

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any person would include an accused person PP v Tan Huang Hiang [1990] 2 MLJ 24 (HC Ipoh) in this case challenge that accused cannot be compelled o There was not the slightest doubt that the statement of the accused while under interrogation was not reduced into writing. Section 121(i) of the CPC [our Section 121(1)] applied equally to both accused persons and witnesses as the reading of the proviso to sub-s (iii) made it more applicable to accused persons than witnesses Mohamed Bachu Miah v PP [1993] 1 SLR 249 o Facts: The accused persons were convicted by the High Court on a charge of murder under the Penal Code. The convictions rested primarily on the statements of the accused. Three statements of each accused were admitted during the trial. The first statement was recorded in the field diary of the investigating officer after the arrest of both accused. The second was a statement under Section 122(6) CPC and the third a long statement. On appeal it was alleged that the statements were incorrectly admitted. The accused persons contended that since the statements amounted to a confession and as they were made whilst the accused were in police custody, Section 26 of the Evidence Act should be complied with and any non-compliance would render the statements inadmissible. The point was also raised that the trial judges had misdirected themselves on the defence of sudden fight o Held: dismissing the appeal, (1) The Section 122(6) and long statements of each accused were rightly admitted. The trial judges were satisfied with the truth of the facts contained in the statements. The statements constituted overwhelming evidence against the appellants, and the court was satisfied that even if the field diary statements were disregarded, the trial judges would still have come to the finding that the charges against the appellants had been proved beyond reasonable doubt. 2) Section 122(5) of the CPC is an express provision within the meaning of the introductory words of s 26 of the Act. What is meant by express provision was elucidated by the Privy Council in Shanmugam v Commissioner for Registration of Indian and Pakistani Residents [1962] AC 515 which the court adopts. In so far as a statement, including a confession, is recorded under Section 121, and provided there is no inducement, threat or promise, it is admissible under Section 122(5) irrespective of whether the person giving the statement is in police custody or not. (3) Section 121(1) empowers a police officer who is making an investigation into a crime to examine any person supposed to be acquainted with the facts of the case. There is nothing in that provision, which suggests that such a power of the police, will not apply where the person who is being examined is a person who is under arrest and against whom a reasonable suspicion exists for being involved in the crime. (4) Under s 122(6) of the CPC, the notice in writing is only required to be served after the person is charged with an offence or officially 2

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informed that he may be prosecuted. The duty to serve the notice does not arise immediately after arrest. (6) An accused person can be convicted on his own confession even when it is retracted, if the court is satisfied of its truth. Corroborative evidence is not necessary to support it. Lim Young Sien v PP [1994] 2 SLR 257 o 10 Before the learned trial judge, counsel for the appellant argued that the CPC gave no power to the police to record statements, whether written or oral, from accused persons. Section 121 of the CPC only conferred on the police the power to record statements from witnesses. Any statement taken from the appellant after he had been accused was therefore, so counsel argued, in breach of art 9(1) of the Constitution. After hearing counsels extensive submission, the trial judge held that the police had the power to record statements from the appellant under s 121(1) of the CPC. The appellant did not, however, appeal on this point. o 11 Neither, in our opinion, was it appealable. The trial judge rightly pointed out that the point had been decided by this court in Mohamed Bachu Miah & Anor v PP.

B. When can a section 121 statement be taken ? - Must you record before he is charged or after given 122(6)? Ideally shld be before he is charged because he is mere suspect and still investigating, after that IO shld then weigh all facts and then charge accused. - However stimes obvious that accused is guilty, so permitted that record after 122(6) and after charged. Has been ruled that this is permissible - s121(1) statement can be recorded from an accused before or after he is charged or after a s122(6) cautioned statement is taken from him - Mohamed Bachu Miah v PP [1993] 1 SLR 249 o held: (5) Section 122(1) nowhere provides that the police may not take a statement from a person after he is charged or after a s 122(6) statement has been obtained from him. - obligation to reduce into writing does not arise until investigations have begun - Loh Kim Cheng v PP [1998] 2 SLR 31 o Facts: The appellant was convicted and sentenced to death on a charge of trafficking by having in his possession for the purpose of trafficking not less than 32.31g of diamorphine. The appellant and one Lee were arrested. The appellant was then escorted to his flat where the drugs were found. At the void deck, ASP Chew had asked the appellant some questions. Before leaving the flat, ASP Chew wrote down on a sheet of paper the questions he had asked the appellant as well as the answers the appellant gave. This piece of paper (P74) was signed by both the appellant and ASP Chew. The prosecution sought to admit in evidence the oral statements made by the appellant and P74. After a voir dire, the learned judge admitted the oral statements in evidence. P74 was also admitted as corroborative evidence of the oral statements being made.

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o On appeal, it was argued that P74 was a statement recorded under Section 122(1) of the CPC and was inadmissible since it was not tendered at the preliminary inquiry. It was also submitted that the learned judge had wrongly called on the appellant to make his defence. o Held: dismissing the appeal (there were other issues decided but the more important ones are as follows) P74 was plainly and simply a contemporaneous note of the oral statements made by the appellant immediately following his arrest. It was not a statement recorded under s 122(1) of the CPC as investigation in the context of the CPC or otherwise could hardly have begun so immediately following the arrest. The oral statements were relevant under Section 6 and admissible under Section 5 of the Evidence Act as they went to prove knowledge of the nature of the substances in the possession of the appellant and formed part of the transaction of being in possession of drugs for the purpose of trafficking. Statements made to a narcotics officer like ASP Chew was not subject to s 122(1) of the CPC. Furthermore, P74 was in fact tendered at the preliminary inquiry but through an oversight was not included with the preliminary inquiry papers. It would undoubtedly have been produced to defence counsel had he called for it. The transcript of the proceedings showed that defence counsel was not prejudiced by the non-production of P74 as he had an inkling from the statement what the contents were admissibility of oral statements made immediately upon arrest before investigations have begun : o made in circumstances of spontaneity / relevant under section 6 Evidence Act / admissible under section 5 Evidence Act - Chi Tin Hui v PP [1994] 1 SLR 778 o => police officer may have seen certain incident and witnesses tell him certain things, investigations not yet begun, officer no duty to record and ask witness to sign. o Such statements are NOT 121 statements because investigations have not begun, made immed upon arrest only, but if relevant under EA they are admissible under section 5. For the signed statements 122(5). The oral ones admissible under s5-15 of EA (just slot into one of the relevant provisions for admissibility)

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Chi Tin Hui v PP [1994] 1 SLR 778 - Facts: The appellant was convicted in the High Court of trafficking by transporting not less than 60.13g of diamorphine - Held: The trial judge was correct in discarding any possibility of concoction by ANO Chua of the damaging oral statements made by the appellant. These statements were clearly made by him in circumstances of spontaneity and went to show his knowledge of what he was carrying when he was arrested and formed part of the transaction of transporting the drugs. They would, therefore, be relevant under Section 6 of the Evidence Act as facts so connected with a fact in issue as to form part of the same

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transaction and, by being relevant, were admissible under Section 5 of the Evidence Act. (3) The appellants explanation of the contents of his cautioned statement that it was Ah Lee and not Tee Kia who had telephoned him to bring the packet to the latter was unconvincing. His explanation of how Ah Lee had wrapped the packet of drugs also lacked credibility. (4) The defence of agent provocateur and entrapment do not exist in Singapore as defences simpliciter

C. Effect of a failure to comply with requirements under section 121? - generally does not affect the admissibility of statements For statement to be admitted in court: 1. is it relevant? 2. is it admissible? see admissibility provisions eg 122(5) admissible so long as no threat induced 3. what weight shld be attached to the statement? procedural improprieties affect only the weight to be attached to the statement Vasavan Sathiadew v PP (1994) 4 CLAS 28 Facts: Contravention of Section 121(3) CPC as statements were read back to A but were not signed Held: Non-compliance does not render the statement inadmissible under Section 122(5) CPC. It only affects the weight to be given to such statement in that it may give rise to questions whether such statement was in fact made, and if it had been made why it was not signed by the accused Comments: Section 302 read with Section 34, Penal Code - murder with common intention - Oral statement recorded in breach of Section 121(3) CPC does not render it inadmissible under Section 122(5) of the CPC. Only its evidential weight is affected. non-compliance with s 121(3) CPC recording procedure: but statement admissible omission to state at end of statement that it had been read over to the subject and an opportunity offered to him to make corrections s 121(3) CPC : Foong Seow Ngui v PP [1995] 3 SLR 785 - this procedure not done, so challenged in court. But court stated that still admissible only that this affected the weight. Facts: One objection raised by appellant P to admissibility of statement was that IO did not state at the end of the statement that the statement had been read over to A and that A had been offered the opportunity to make corrections Held: (LP Thean JA): This omission serious irregularity, whats important is not whether the clause was included at end of statement but whether statement was actually read to A and, after correction, if any, signed by him (i.e. requirements in Section 121(3) CPC have been fulfilled). subject failed to sign statement but still admissible: Vasavan Sathiadew v PP 5

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subject refuses to sign statement --> statement is still admissible : PP v Lim Young Sien (CC 63 of 1993) Held: (Rajendran J): Same holding as Vasavan Sathieadew. Section 121 CPC provisions of reduced into writing, read over to W and signed by W are directory and not mandatory. Surely it cant be said that if W refused to sign a statement, the police would not have power to take the statement? see also Seow Choon Meng v PP [1994] 2 SLR 853I rape case; mde two long statements then oral statement when brought to the scene then brought back to statement and recorded long statement, pros sought to adduce all statements 3 written and 1 oral. Oral statement not recorded down. Investigations had begun (brought to scene etc, so under 121(1), officer has duty to reduce into writing and ask accused to sign) but in this case poclie officer failed to do so whether this oral statement was admissible. Trial court ruled that admissible and tt no need for trial within trial to be held to admnit the statement because accused defence was that he did not make it at all and htat he was not author of the statement ie denied totally. o On appeal, held that oral statement wrongly admitted because THERE SHLD be trial within trial. He challenged long statements as invol, and oral statement made within these prudent for court to hold voir dire to admit the oral statemtn and since this not held, wrongly admitted. o Note inadmissible not because not recorded down, only because there was no trial within a trial held o Held: (Karthigesu JA): No statutory requirement to record that the first statement was read back and explained to A. Merely good practice for this to be done. CCA ruled in Vasavan Sathiadew that non-compliance with Section 121(3) CPC does not render statement inadmissiblea fortiori, departure from a rule of practice should not affect admissibility, though it has a bearing on its weight. Caution : statements admissible despite procedural irregularities does not mean police have a licence to flout Police General Orders and the statutory requirements see Rajendran Js caveat to this broad principle in PP v Dahalan bin Ladaewa [1996] 1 SLR 783 (High Court affirmed on appeal) o in this case accused made oral statement in malay, officer recorded down on paper and days later transferred to pocket bk and then paraphrased it in English and then threw away the paper. So gross injustice in this case judge threw out the so called oral confession of the accused. o Facts: Police sergeant with 16 years experience noted down As answers on a piece of paper and later expanded these answers into his pocket book, before destroying the piece of paper. No statement was read back to A and neither was A asked to confirm accuracy of statement and sign it. Further, in expanding the answers, police sergeant used words not uttered by A. o Held: (Rajendran J):

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The words shall be admissible in Section 122(5) CPC indicate that in situations not covered by the proviso (i.e. statement made of inducement, threat or promise), the Ct is vested with a discretion to admit or reject statements. The police sergeant here had ample time to comply with Section 121 CPC. By not doing so, he flagrantly disregarded the provisions of Section 121 CPC. Although an oral statement will not be inadmissible because of noncompliance with the mandatory provisions of Section 121 CPC, the fact that oral statements are admissible under Section 122(5) CPC should not be treated as licence for police officers to ignore the provisions of Section 121 CPC.

Instances where non-compliance with s 121(3) CPC : statement inadmissible o guiding principle if court thinks that there is some prejudice against the accused judicial discretion will be exercised ie gross injustice caused by the irregularity statement not reduced into writing until 6 weeks later : Kong Weng Cheong v PP [1994] 1 SLR 34 drug case. o Facts: In 1989, officers of the Central Narcotics Bureau mounted a surveillance of the three appellants. The car driven by the second appellant was searched. Inside its fuel tank were found 39 packets of compressed white substance, which on analysis were found to contain not less than 8.25kg of diamorphine. o Held: In relation to the oral statement said to have been made by the first appellant to SNO Peter Lim and NO Ng, the evidence of these two narcotics officers relating to the alleged statement was highly unsatisfactory in several material respects which were not brought to the attention of the trial judge. Accordingly, such statements ought not to have been accepted and was rejected. o In the present case, the evidence of the second and third appellants, in so far as material to the finding against the first appellant, was substantially corroborated by other evidence. In any event, Section 135 of the Evidence Act provided that the evidence of an accomplice did not require corroboration and that the court was not required to warn itself about convicting an accused on the uncorroborated evidence of his accomplice. failure to inform Accused of the charge before statement recorded :Jamaludin v PP [1992] 1 SLR 911 drug case. o 1 wk before arrest, test buy and accused sold drugs to undercover officer. CNB officers did not arrest him at that time. 1 wk later, they tried another operation but this time accused did not bite he did not sell. CNB officers arrested him during the second test buy. Statement recorded and he was not told why he was arrested. He was charged for the first test buy one wk before. Whatever he said after arrest was rled inadmissible because whole integrity of recording was called into question. Gross injustice he was not told why he was arrested since he had not sold any drugs this time round. 7

o Facts: A was not informed of particulars of the charge against him before statement was recorded. Subsequently convicted and appeal vs. conviction. o Held: (Kan J): Appeal allowed. If A not informed of the particulars of the charge, there was a question whether A really made the statement of an event without even being told that that was the event under investigation. Integrity of the recording exercise comes into question. Now doubtful whether the statement was recorded in the manner described by P. It should not have been admitted. PP v Low Kok Wai (CC 59 of 1992) : ...at the very least, an accused person who is asked to make a statement ought to know the true purpose of the statement that he is making, and ought also to know the charges to which he is answering in giving the statement o Facts: There were allegations in trial for drug offences that A had been misled to the nature and purposes of Section 121 CPC statement taken from him. There was evidence that A interviewed by several officers before recording statement and had been led to believe that he was actually helping CNB in their pursuit of his Malaysian boss. There were further allegations that he was led to believe that the interviews were purely between himself and the particular CNB officer in each case and not for any other purpose. Also evidence that recorded did not warn A before taking Section 121 CPC statement. Neither did he inform A that statement taken for the purposes of the charges he was facing. o Held: (Goh Phai Cheng JC): Statement inadmissible. Not satisfied that statement made voluntarily. True that in PP v. Tan Ho Teck, held that no caution necessary prior to taking Section 121 CPC statement but nonetheless, at the very least, A who is asked to make a statement ought to know the true purpose of the statement he is making and ought also to know the charges to which he is answering in giving the statement. While I am not prescribing some formal caution similar to that for Section 122(6) CPC, its important that there is this minimal requirement before a statement is safely admissible in a case against A. Particularly so where A held in custody for some 10 days after arrest and interviewed several times for different purposes. Clearly he ought to have been notified that taking of actual statement not the same as those he had given in earlier sessions.

D. Role of interpreters ? - If they intervene, statement may be thrown out IO can act as recording offier and interpreter so long as can prove in court that not biased when interpreted statement ->> IO can be interpreter, no prejudice with his role as investigator : Kong Weng Cheong v PP [1994] 1 SLR 34 o Facts: A contended on appeal that oral statement made to CNB officer in which confession made should be inadmissible. Arresting officer had acted as Mandarin interpreter. Defence counsel contended that a wholly independent 8

person against whom no allegation of bias could be made should have acted as interpreter, relying on UK case of R v. Mitchell and PP v. Cheong See Leong (in which detective sergeant who was part of investigation team had acted as interpreter. Held that use of detective sergeant who was fully conversant with the material facts and was subsequently called by P offended vs. the elementary ideas of justice and therefore no reliance could be placed on the accuracy of the statement). o Held: Argument has no merit. Clearly in order for investigating officer investigating a serious offence to use arresting officer as interpreter. Theres no principle of law which requires that on such occasions, an interpreter not involved in the investigation be called to interpret. No allegation of bias vs. either IO or interpreter and there can be no objection to AO acting as interpreter. R v. Mitchell distinguished case involved waiter in restaurant whose pptor had complained vs. A acting as the interpreter. Held that this was so irregular that conviction unsafe. This case is irrelevant here. As for Cheong See Leong, this case was reported in note form, which is not adequate and this Court is unable to ascertain precisely the reasoning for the decision. if IO is the interpreter, he must be sufficiently competent to interpret : Foong Seow Ngui v PP [1993] 3 SLR 785 IO was Cantonese while Accused was Hokkien o Facts: Objection raised to the voluntariness of s.121 statement AP was Hokkien and IO interpreter was a Cantonese. Argued that on this basis, an interpreter was indispensable. o Held: (LP Thean JA): Mere fact that IO is Cantonese doesnt mean he cannot understand Hokkien. Only issue is competence of IO in Hokkien. TJ accepted evidence that IO passed Hokkien test in 1970s and used Hokkien in his work; found that he was competent in Hokkien : - question of fact for the judge to decide no precise test. Judge will ask qns as to his backgrds etc. in this case, judge asked court interpreter to test the IO of his proficiency. Some things difficult to interpret in hokkien eg trafficking, aggravated where interpreter behaves extraordinarily, statement may be excluded : PP v Syed Abdul Aziz (CC 32 of 1990) o interpreter told Accused before starting to interpret his statement to be religious, to pray and to visit mosques and not to do bad deeds o High Court found this not only strange but was irregular and out of keeping with the procedure when taking statements where presence of interpreter during recording of statement in doubt, statement may be excluded : PP v Hanafiah bin Bedullah (CC 35 of 1992) o in this case statement recorded for 2 hrs, then break, then 1 hr later, resumed recording, during 1 hr break, when interpreter cross examined, cld not acct for whereabouts in the 1 hr, accused then said that things happened within the 1 hr 9

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and interpreter cld not confirm or deny what happened and so statement thrown out. Need to ensure that diary kept etc when interpreters act. o Facts: During trial, application made by P to impeach As credit with statement. A disputed voluntariness of statement and VD conducted. P claimed statement made to NO with interpretation done by another NO. But there were several problems with this account50 minute gap between end of recording and time A sent back to lockup and entry in the pocketbook of the NO who supposedly acted as interpreter was irregular. A gave different version no interpreter when statement taken. o Held: (Kan Ting Chiu JC): Statement proved of doubts whether statement recorded in manner alleged by P. 2 aspects of recording procedure unsatisfactory omission of interpreter to make proper record that he had so acted AND 50 minute interval between end of recording and As return to lockup. Hard to believe recording NOs explanation that A was in room all the time while he was doing something else, when another NO was supposedly there as well. These gave credence to As assertion that there was no interpreter present at the recording. This created a doubt as to whether the statement was properly recorded. E. Necessity of medical examination before recording of section 121 statement? not a formal requirement under s121 usually when accused suffering fr drug withdrawal. Police officer o exercise common sense whether to send for med exam first depend on facts of case does not make statement inadmissible whether a medical examination should have been conducted will have to depend on the facts of the case e.g. whether Accused was suffering from drug withdrawal at the material time In capital cases, the practice of the Police or drug enforcement officer is to send the accused for a medical examination both before and after the recording if his statement. May wish to request for copies of the clients medical reports from the Police or the hospital. However, the failure to send an accused for a medical examination does not in itself raises any doubt as to the voluntariness of the statement. (See Lim Swee Thong v PP1 [1994] 1 SLR 713 & Goh Soon Huat v PP2 [1995] 1 SLR 634) Goh Soon Huat v PP [1995] 1 SLR 634 Facts: The appellant was arrested at Thomson Plaza with 48 sachets of diamorphine, with a net diamorphine content of not less than 69.34g, by CNB officers. After his arrest, the appellant gave a statement under Section 122(6) of the CPC, stating that the drugs were for his own consumption and not for trafficking. The same evening, a CNB team led by CNB Sgt Lio interrogated the appellant. In the early hours of the next morning, the appellant suffered from drug withdrawal and was rushed to Changi1 2

Whether medical examination should have been conducted will have to depend on the facts of the case. Please refer to Crim Pro Lecture 7 Statements to the Police for a full discourse of this case.

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Prison Hospital. After his discharge, Sgt Lio again interrogated the appellant. Three days after his last interrogation, the investigating officer W/Insp Chong through a CNB interpreter took the first of two statements under Section 121(1) of the CPC from him. The second statement was taken three days after that. The appellant challenged the voluntariness of the Section 121 statements. He alleged, inter alia, that he was suffering from the effects of drug withdrawal at the time he gave the Section 121 statements and that they were concocted by W/Insp Chong and the interpreter. The appellant argued that he should have been sent for medical examinations before and after the taking of the Section 121 statements. The trial judge rejected the contentions and admitted the Section 121 statements. In the Section 121 statements, the appellant described how he had purchased the drugs in Woodlands on the day of his arrest and then gone to Thomson Plaza from Woodlands. The appellant admitted to being in possession of the drugs. His defence was that he was at Thomson Plaza to deliver only ten sachets to Azman. The remaining 38 sachets were for his own consumption. He was consuming drugs at home in Serangoon Gardens that day when Azman paged him. In his hurry to get to Thomson Plaza, the appellant had forgotten to remove the 38 sachets from his briefcase. In the trial, the appellant called expert evidence to show that he was capable of consuming 38 sachets of heroin in 38 to 90 days. Azman also testified for the defence. The trial judge held that even accepting that the appellant was a heavy user of heroin, this did not mean that he could not also traffic in heroin. The trial judge was satisfied that the defence was fabricated by the appellant and Azman, and accordingly convicted the appellant. On appeal, it was argued that the trial judge erred in admitting the statements and that in any event the trial judge ought to have accepted the appellants defence as it was supported by Azmans evidence. Held: dismissing the appeal: o In the circumstances of the case, there was no need to send the appellant for a medical examination before and after the taking of the statements under Section 121(1) of the CPC. In order for the effects of withdrawal from drugs to affect the drug users medical and psychological condition to render any statement he makes to be involuntary, he must be in a state of near delirium. The appellant was nowhere near such a state. Further, there were no allegations that the appellant had been assaulted either before or during the recording of the statements under s 121 and the appellant had not asked to be sent to a doctor. o After reviewing the evidence, the court was also satisfied that the statements under Section 121 were not given as a result of threats or inducement. Further, the appellant fabricated the allegations of concoction made against the recording inspector and the interpreter. Comments: It was not necessary for the appellant to minutely detail all his defences in his Section 122(6) statement. However, this did not mean that the court must accept what the appellant said as true. This must still be weighed against the other evidence. It may not always be clear when an omission to state details becomes an omission to state material particulars. This was a matter for the trial judge on an evaluation of all the evidence at the trial.

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:Lim Swee Thong v PP [1994] 1 SLR 713 - Facts: The appellant was convicted for trafficking drugs. The appellant had argued that he had not been sent for a medical examination before giving an inculpatory Section 121 statement. - Held: Although the appellant had not been subjected to pre- and post-statement medical examinations, there was nothing to suggest that the trial judges finding that the statement had been made voluntarily had been in error. The trial judge had considered the totality of the evidence and had been entitled to reject the appellants allegations of fabrication and assault - Aside from challenging the voluntariness of the statement, you can also challenge the statement on the grounds that the statement was not recorded in the manner that the accused intended it to be recorded. E.g. that the recorder attempted to summarise what the accused said and in doing so did not capture the meaning of what the accused intended to say. - When recording clients instructions on his statements to the police, should also pay particular attention to the manner in which the statement was recorded. IO cannot cross-examine the accused when recording his Section 122(6) statement. see Standard Operating Procedure of police force only for capital cases waste of resources to do med exam for trivial cases. Only for serious cases. 122(6) statement is when accused supposed to answer to the charge tell IO his defence. Very impt, that sdtatement treated differently officer will subject him to pre and post med treatment BUT for 121 depends on the facts!!!!

F. Privilege against self-incrimination - section 121(2) bound to state truly the facts and circumstances except that he may decline to make a statement which would have a tendency to expose him to a criminal charge or to a penalty or to forfeiture 3 salient questions: o a. Is privilege a fundamental rule of natural justice? o b. Does accused have right to be informed of this right to silence? Does recording officer have duty to inform accused of such a right? o b. Does failure to administer caution make statement recorded inadmissible? ans to all three qns no

PP v Mazlan [1993] 1 SLR 512 important pronouncements of CA with regards to nature of privilege in s121(2) o note however the Courts ratio that stating only one part of the s121(2) right may amount to an inducement which may influence the admissibility of the statement under s122(5) : i.e. stating only that one is bound to tell the truth without stating that one has a right to remain silent ie accused person shld know their rights. Ignorance of law no excuse. When statement recorded fr them, IO no duty to tel person that he has right. Accused also no right to be informed. 12

But if recording officer tells accused caution under 121, he must tell him the whole thing. Cannot just say you are bound to tell the truth, in some circumstances this may amount to a threat. l a suspect or accused need not be expressly informed of his right to remain silent. Failure to inform not breach of constitutional right. Statement can be admitted even if no caution read to accused this will go to weight, not admissibility. But ct also held that where accused was told that he may remain silent, but is also told that he is bound to tell all the truth, a reasonable doubt arises as to whether he would have said the same things if he had been informed he was entitled to refrain. May be inducement w/in s 122(5). Facts: During trial of the accused for murder, Ct ruled s.121 statements were inadmissible as the interpreter had not informed the accused that he was entitled to refrain from stating anything which might expose him to a criminal charge. Held: (Yong CJ): o No duty on police to expressly inform suspect/ accused of the right to remain silent when statement is recorded pursuant to s.121No mention of such duty in s.121 for use of the power of investigation therein. Repeal of Schedule E means that statements are admissible as long as they are not tainted by inducement, threat or promise. o Further, failure to inform accused of right breach of constitutional rights in Art. 9(1). Art. 9(1) does not refer to right of silence/ PASI. Though law in Art. 9(1) includes FRNJ (as held in Ong Ah Chuan v. PP and Haw Tua Tau v. PP), the right of silence has never been subsumed under the FRNJ...its merely an evidential, not a constitutional, rule. o Also, since the days of the Star Chamber, many rules of criminal procedure and evidence have been developed to reduce/ remove the risk of unreliable confessions being extracted by force and used against their makers, e.g. s.122(5) CPC (police statement must not be obtained by inducement, threat or promise), s.24 EA (confession requirements)thus, little remains of the dangers of selfincrimination to justify giving right of silence constitutional status. The rule would also have been specifically enacted this if Parliament intended to guarantee full protection for it, just as it has guaranteed the right of an arrested person to be informed of the grounds of arrest as soon as may be. o As s.121 does not concern admissibility, technically a s.121 statement has to be admitted under s.122(5) but nonetheless the admissibility of such statement is not affected if the accused is not told beforehand of the right to silenceno evidential penalty prescribed for failure to so notify the accused. o However, failure to notify the accused may affect the issue of voluntariness which goes towards the s.122(5) test of admissibility the failure to inform a person of his rights in circumstances where there is a positive duty to do so may amount to an inducement its reasonable to assume that such omission might have caused person to say what hed otherwise might not have said. o Here, interpreter only read to accused the 1st of s.121(2) (i.e. that he must tell the truth) and left out the2nd (i.e. can decline to say anything which would incriminate self). Thus, not only was accuseds right not mentioned, but he was

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also actually told that he was bound to tell all the truth. From these facts, there could be said to be inducement. o : - (Therefore, either tell the Accused everything or nothing.) Ong Seng Hwee v PP [1999] 4 SLR 181 - Facts: The police raided the premises of Scan link Woodcraft, a sole proprietorship, on 21 April 1998 and three Indian nationals were found on the premises. They were subsequently charged and convicted for offences under the Immigration Act (Cap 68). The appellant was charged with harboring and employing these immigration offenders. The appellant challenged the voluntariness of this statement on several grounds. First, he was told that he was bound to state the facts truthfully but not his right to refrain from saying anything that might incriminate him. Second, that threats, inducements or promises were made during its recording. Finally, he was given little to eat and laboured under illness and medication at the time. - Held: The circumstances surrounding the recording of the statement did not come close to establishing the requisite weakening of the appellants free will to render the confession involuntary - Comments: First, what was in substance an allegation of oppression. The relevant inquiry here was whether the circumstances prevailing at the time of the recording of the statement were such that the appellants free will was sapped and he could not resist making the statement: R v Priestly (1967) 51 Cr App R 1, PP v Tan Boon Tat [1990] SLR 375; [1990] 2MLJ 466. The Judge noted that the length of questioning was only two hours. The appellant alleged that he only had a cup of tea during the whole morning, but the station lock-up diary contradicted this. He was offered medical attention but refused this and was allowed to take his medication. The note from his doctor only suggested that this medication caused drowsiness. His conduct prior to and after the recording of the statement, however, did not suggest that he was seriously ill at all. He violently struggled with the arresting officers. - On his return from the station, he set about immediately to draft the two letters to SSgt Lim and delivered them that same night at about midnight. The evidence as a whole suggested that the appellant was perfectly alert and lucid, albeit tired. The circumstances here hardly came close to establishing the requisite weakening of the appellants free will that would render the statement involuntary. in practice, when polce record statement under 121 fr witnesses, will tell the that he is recording statement etc A form. For B form (accused person) no caution warning. Police do not tell accused persons caution under 121(2). Because 1. this is traditional 2. fear that IO dont read or if half only then this may amt to a threat. Position is that every citizen shld know their rights. Ie accused and witnesses treated differently.

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Lim Choon Chye v PP [1994] 2 SLR 517 unsuccessful reliance on Mazlan

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Accused was interrogated by intelligence officers who assured him that whatever he revealed about other drug activities unconnected with the charge would not be used against him s121 statement was recorded from him a week later. s121(2) caution not administered to him. Held: a representation to the accused in relation to drug activities unconnected with the charge against him was too far removed, on facts here, from the subsequent recording of s121 statements to constitute an inducement to make them it is not the law that an adverse inference must be drawn whenever an accused elected not to say anything: PP v Azman bin Abdullah PP v Abdul Naser bin Amer Hamsah: Court expressed that no adverse inference ought to be drawn from the fact that the accused did not disclose his defence in his s. 122(6) statement because he did disclose it in a previous investigation statement, albeit in connection with some other offence Yap Giau Beng Terence v PP: appellant contended that the trial judge should not have drawn an adverse inference from his failure to raise the material aspects of his defence because he had wished to consult a lawyer first and did not want to say the wrong things court rejected this contention because it was of the view that s. 123 CPC, which purpose is to compel the accused to outline the main aspects of his defence immediately upon being charged, so as to guard against the accused raising defences at trial that are merely afterthoughts, would be rendered otiose, if the accused were allowed to escape the consequences simply by explaining that he had wished to consult a lawyer first before saying anything must have been evident to the appellant, even without the benefit of consultation with a lawyer, that the facts, which he had failed to mention in his statements, would have afforded a legitimate explanation for his conduct, and it would have been in his interest to mention them PP v Azman bin Abdullah: accuseds explanation for his silence was that he was afraid that he would be accused of lying and be charged a second time in light of the fact that the investigation officer has also recorded a previous investigation statement from him where he had persistently refused to believe the accused it was therefore reasonable for the accused to think it useless to say anything, and for him to expect the same treatment from other investigation officers

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Statements under s 122(6) CPC (cautioned statements) Section 122(6) CPC : Where any person is charged with an offence or officially informed that he may be prosecuted for it, he shall be served with a notice in writing, which shall be explained to him, to the following effect: You have been charged with/informed that you may be prosecuted for (set out the charge). Do you wish to say anything in answer to the charge? If there is any fact on which 15

you intend to rely in your defence in court, you are advised to mention it now. If you hold it back till you go to court, your evidence may be less likely to be believed and this may have a bad effect on your case in general. If you wish to mention any fact now, and you would like it written down, this will be done. -->chance to state his defence. Admissibility sections: - Section to admit 122(6) if police officer then admitted under 122(5) whether confession or not as long as no threat, inducement or promise. - But for 122(6) recorded by non police officers, admissibility section is section 24 of Evidence Act has to be a confession first A. Purpose of section 122(6) CPC statement? Accused should mention his defence immediately upon being charged or informed he may be prosecuted no difficulty in doing this, if an Accused is innocent an adverse inference may be drawn against an Accused if he fails to mention facts which in the circumstances it can be reasonably expected of him to mention o not in all cases if can give reasonable explanation as to why did not mention particular fact eg afraid that wife wld find out abt affair then court may not draw adverse inference. Will look at circumstances and see whether expected of accussed to mention it o => cautioned statements s123(1) allows the court to draw such adverse inferences when deciding (Adverse inference can be drawn at 3 stages): o whether to commit accused for trial in High Court (preliminary inquiry) o whether to call for his defence at close of prosecutions case o in the finding of guilt Section 123(1) CPC : Where evidence is given that the accused, on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time he could reasonably have been expected to mention the court, in determining whether to commit the accused for trial or whether there is a case to answer, and the court, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper; and the failure may, on the basis of those inferences, be treated as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material. B. Notice in writing / Shall be explained - Two notices - 122(1) and 122(6); dont confuse - 121 police officer can record statement only - 122(6) any enforcement agency can record statement. Ie CPIB/ CNB/MOM investigators because specific persons charged this power comes fr 122(8).

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recording officer to prefer and read charge to accused notice served on accused only after he is charged/officially informed he may be prosecuted; not upon arrest MOM officers cannot record statements under this Section. The statement taken from them would be admissible under Section 24 of the EA. officially informed means informed by a police officer or any other person charged with duty of investigating offences or charging offenders - s122(8) CPC a technical defect in the notice or a deviation therefrom is a mere irregularity and will not per se affect admissibility of the cautioned statement

1. Notice to be Served - Tsang Yuk Chung: non-material typographical error in the notice in writing is a trivial noncompliance this suggests that a material error in the notice in writing may be such a defect so as to prevent the court from drawing any inferences as appear proper - only required to be served after the person is charged with an offence or officially informed that he may be prosecuted for it - duty to serve the notice does not arise immediately after arrest: Mohamed Bachu Miah v PP 2. Notice to be Explained - word explain should be construed in a broad common sense manner - to explain is to make one understand - if an accused is made to understand the substance of the charge, and the adverse implication of not stating any fact, which might assist his case, then the requirement would have been complied with - clearly not intended by that section that the recording officer should explain the ingredients of the charge - such attempt may convey a wrong meaning or implication to the accused - Lau Lee Peng v PP: defence did not challenge that both the charge and the notice of warning were read out, explained and interpreted to the accused by the investigation officer in the Teochew dialect defence argued that the accused, being a fishmonger of low intellect, could have failed to mention the crucial allegations in his statements because he did not understand the importance of doing so at the relevant time Court of Appeal rejected that argument because the caution administered was simple enough accused would have understood from the interpreter the substance of the charge and the implication of the warning, if they were both accurately interpreted to him in a language that he understands - Lee Kwang Peng v PP: accused alleged that his s. 122(6) statements were not translated

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Singapore High Court did not regard this as material as even given the accuseds limited knowledge of English, he would have understood the statements, which were very simple how notice should be explained to a person with a physical disability Abdul Rahim bin Syed v PP: appellant was a deaf mute since birth statement was recorded from him under s. 122(6) through the interpretation by sign language court was of view that since the appellant had no formal training in sign language, it was not clear that the appellant was able to comprehend what was interpreted to him by means of the sign language used

3. Warning to be Administered - Tan Boon Tat: Held that warning was couched in very simple language which is easily comprehensible by those who read English Unsafe to simplify, or on the other hand, to elaborate or amplify it PP v Chia Chee Yeen [1991] 3 MLJ 397 - Facts: The appellant was convicted of the murder of one Daniel De Rozario. At his trial the appellant relied solely on the defence that, at the material time, he was suffering from an abnormality of mind. The trial judges rejected the defence and convicted the appellant, who appealed. (This was the army LCP who shot his PC for giving him too many confinements. He was acting as the super hero from The Bund) - Held: Dismissing the appeal: o In law, the burden of proving diminished responsibility, which was on a balance of probability, rested on the appellant. This was a question of fact, which must be decided in the light of all the evidence before the court, including medical opinion. The trial judges gave a full and proper consideration to all the evidence, including the medical evidence and there was nothing to indicate that they had erred in law or in fact in arriving at the conclusion that the appellant was not suffering from any `abnormality of mind` at the material time. o Comments: Please also see PP v Dom Promphhinit (1995) 1 CLAS News 67 addition of rider I now invite you to state your defence did not offend spirit or letter of Section 122(6) of the CPC. Johns dad was the expert psychiatrist in this case. PP v Dom Promphhinit (1995) 1 CLAS News 67 - addition of rider `I now invite you to state your defence did not offend spirit or letter of s122(6) - => did not make statement inadmissible Extent of explanation of the notice? Previously, a word for word translation of the charge and notice was insufficient and the recorder had to explain so that accused fully appreciated the caution

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Currently, it is sufficient if the Accused is told in general terms what the charge and warning mean; since accused persons differ in background, what form the explanation takes must ultimately depend on the facts of each case open for interpretation, eg if have well educated person just read word for word enough. But if educationally subnormal person, must explain charge to him. explain construed in broad common sense manner for accused to understand the substance of the charge and the adverse implication of not stating facts in his defence a failure to sufficiently explain charge/notice does not affect admissibility but may affect the courts decision whether or not to draw any inferences from accuseds failure to mention relevant facts in his defence stimes for educationally subnormal person, court may not draw adverse inference even though statement may be admitted

PP v Chan Sway Beng [1988] 2 MLJ 405 Tsang Yuk Chung v PP [1990] 3 MLJ 264 - Facts: The accused was convicted of murder under the third limb of Section 300 of the Penal Code. His cautioned statement was admitted at his trial. On appeal it was alleged that the cautioned statement should not have been admitted and that the accused should not have been convicted as it was shown that he had no intention of causing injury to the deceased. Counsel for the appellant conceded that the statement was made voluntarily, and without any inducement, threat or promise. However, he argued that the provisions of Section 122(6) of the CPC had not been complied with by the investigating officer who recorded the statement hereunder in that the investigating officer did not explain the charge nor the prescribed warning to the appellant. - Held: - (1) Section 122(6) of the Code did not provide for the admissibility of statements recorded thereunder. This was found in s 122(5) of the Code, and a statement whether or not it was purported to have been made under s 122(5) was admissible so long as s 122(5) was satisfied. - (2) An inculpatory statement was evidence of the facts stated therein. - (3) A statement recorded under s 122(6) was also admissible in evidence for the purpose stated in s 123(1) of the Code. Non-compliance with s 122(6) resulted not in a statement being inadmissible, but in enabling the court having to take such non-compliance into consideration when deciding what inferences, if any at all, should be drawn from the failure of the accused to mention certain facts. - (4) The test was whether it could be said that the circumstances existing at the time the accused was charged were such that he could be reasonably have been expected to mention certain facts on which he was relying in his defence. - (5) The accused conceded that the statement was made voluntarily. Section 122(5) of the Code had therefore been satisfied, and in the absence of any reliance by the prosecution on Section 123(1), it could not be argued that non-compliance with s 122(6) should affect the admissibility of the statement. - (6) The requirement that the notice in s 122(6) shall be explained would be satisfied if an accused person was told in general terms what the charge and

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warning meant. Since accused persons differed in background, what form the explanation took must ultimately depend on the facts of each case. Tan Boon Tat v PP [1992] 2 SLR 1 - Facts: The appellant was convicted of the offence of trafficking in 1,120.81g of diamorphine under the Misuse of Drugs Act. The appellants statement under Section 122(6) of the CPC was recorded with the assistance of a certified interpreter. The statement was admitted after a trial-within-a-trial. The trial judges convicted the appellant on the grounds that he had failed to rebut the presumptions that arose against him under Sections 18 and 21 of the Act. - One of the issues was whether the Sections 122(6) statement of the appellant was made voluntarily and it was argued that the trial judges erred in holding that a mere reading of the notice in writing and the charge was sufficient compliance of Section 122(6) - some form of explanation was required. - Held: A confession made to a narcotics officer is admissible in evidence provided the provisions of Section 24 of the Evidence Act are complied with. The court is required, inter alia, to consider if the confession appears to have been caused by any inducement, threat or promise proceeding from a person in authority and to approach the matter from the viewpoint of the accused, and consider whether the circumstances were such that it could give reasonable grounds for the accused to suppose that by making it he would gain an advantage or avoid any evil of the kind referred to in Section 24. The trial judges approached their task in a common sense way to all the facts in the case and have not made a wrong assessment of the evidence before them, nor in any way failed to apply the correct principles. The trial judges rightly considered the matter from the point of view of the accused. - The admissibility of a statement recorded under Section 122(6) of the CPC is dependent on Section 122(5) of the CPC or the Evidence Act. Non-compliance with the provisions of Section 122(6) may put into jeopardy the possibility of the court drawing an adverse inference under Section 123(1) of the CPC but has little or no bearing on the question of admissibility. PP v Sugianto (CC 25 of 1993) - Facts: A charged with importing cannabis. Defence counsel objected to admissibility of s.122(6) statement. VD held and interpreter testified that he had explained the meaning of import to A as bringing something into Singapore. Legal elements of charge not explained (e.g. that to be guilty, must have assumed responsibility for drugs overseas, arranged for it to come to Singapore as part of baggage AND if someone else had arranged for it to come to Singapore and A only picked up luggage at baggage claim, guilty) and Defence contended there was a misrepresentation of law to A and any statement obtained was a statement obtained by an inducement as A had acted under a belief that he was guilty of the offence in the charge. - Held: (Goh Phai Cheng JC): o Statement admissible (but A acquitted on other grounds). o Here, no evidence that supposed misrepresentation was such as to have caused A to suppose hed gain advantage or avoid evil in reference to charge.

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o Sufficient from Tsang Yuk Chang that A be told in general terms about meaning of charge and warning. Form of explanation would depend on facts of the case since As differ in background. o Here, explanation of interpreter as to meaning of import is sufficient explanation in general terms. To require more would be to require a legal interpretation of the import, including all steps required to satisfy the legal definition of the term. This is untenable. o Further, meaning of word in accordance with definition in Interpretation Act. Nothing more reasonably to be expected in an explanation of the meaning of the charge PP v Oh Teh Hwa [1994] 2 CLAS 1993 - Facts: Indian IO who was not fluent in Hokkien, Hokkien-speaking A. Interpreter only mentioned 3 of 7 definitions of trafficking to A. IO did not have MDA with him when recording statement but explained relevant sections to interpreter to translate to A but did not explain very consistently (different words used). Also did not tell A how he could rebut presumption of trafficking, i.e. by giving evidence that he was not - Held: o No AI drawn from As response of nothing to say. o Charge and notice not properly explained, A did not avail himself of the opportunity to speak. C. How much of defence is to be stated? Drawing of adverse inferences? - Is mere denial sufficient? can prosecutor say that he did not mention in 122(6)? - Test - what is reasonably expected of him to say on an objective view Sim Ah Cheoh v PP: - S. 122(6) CPC if to inform the accused of the charge he is facing and to give him an opportunity of stating any fact - his silence may give rise to an adverse inference against him Roshdi v PP [1994] 3 SLR 282 - murder of CNB officer with mortar by his friend - defence of sudden fight and private defence - Held : o s122(6) statement does not require the accused to minutely detail the defence he will be relying on at the trial o all that is required is that a material fact which will be relied on is stated o here, accused had, in his s122(6) statement, laid the foundation for his defences at trial o court accused did not state in his 122(6) that CNB officer assaulted him first and caused him to fall and that he struck officer for first time with mortar prosecutor said that lacked detail and his defence shd not beelived. But court held that what he said in 122(6) was sufficient and not inconsistent with evidence in chief. Material facts all there that he did not intend to kill, that

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deceased used his hands to press against his neck, that he hit deceased till he ws motionless. o According to court, immaterial inconsistencies do not matter, accused already stated defence Govindarajulu v PP [1994] 2 SLR 838 - drug trafficking, accused claimed he did not know he was delivering heroin as he had tasted the substance and concluded it was not heroin evid in chief in court - Held : o tasting episode was most material part of defence yet accused failed to mention it at all in his s122(6) statements or in his very detailed statements to the CNB o this failure dented accuseds credibility severely o trial judge entitled to rely on this material omission to disbelieve accused over the tasting episode o tastin very impt because shows knowledge/ mens rea he says that he has no mens rea and very impt reasonable to expect him to mention it in 122(6). Adverse inference drawn against him Ng Chong Teck v PP [1992] 1 SLR 863 - drug trafficking, accused claimed for his own consumption - no less than 5 opportunities to give his explanation for being in possession of the drugs but he remained silent, even in his s122(6) - in court said for first time own consumption and no intention to traffic - right to reject his defence Thongbai Naklangdon v PP [1996] 1 SLR 497 - Facts: A was convicted of murdering co-worker. In Ct, A did not deny hitting the deceased but claimed that it arose out of an incident in which the deceased had first kicked the appellant in the groin and then advanced menacingly, whereupon the appellant hit the deceased with a pipe. Appellant claimed that he had only caused grievous hurt. JC found that the appellants evidence was doubtful as no mention was made in any statements, including the s.122(6) statement of any fight between him and the deceased and concluded that the omission was to create the impression the deceased had died from other injuries inflicted during an earlier fight between the deceased and some other co-workers. CA dismissed appeal. - Held (Yong CJ): o The fight between appellant and deceased was part of an entirely different narration of events from what was contained in the statements Chou Kooi Pang v PP [1998] 3 SLR 593 - Facts: The first appellant was charged with trafficking by delivering ten packets of drugs containing not less than 290.4g of diamorphine to the second appellant in a car. The second appellant was charged with having the said drugs in his possession for the purpose of trafficking. - Held:

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o The first appellant had failed to rebut this presumption. Ignorance could only have been a defence where there was no reason for suspicion. Here, the circumstances were such that he should have been alerted to the fact that he was carrying something illegal. His failure to inspect the contents of the bag amounted to wilful blindness to the obvious truth of the matter. o Further, the first appellant here chose to remain silent, relying only on the evidence of the defence expert witness that he was of low intellect. However, in view of the surrounding circumstances, it was imperative and vital that the first appellant provided an explanation. Since he failed to provide any explanation, the trial judge was entitled to draw the inference that the first appellant had failed to rebut the presumption. o The second appellants defence was that he did not know that the bag contained more than half a pound of heroin. This seemed far-fetched considering that the bag contained several times the weight, which he claimed that he was expecting to receive. Further, after collecting the bag, he had gone back to his flat and kept the bag in his custody for an hour and ten minutes. There had been more than enough time and opportunity for him to examine the contents of the bag. o Further, the defence was only raised at trial. The second appellants failure to mention a material part of his defence at an earlier stage meant that it was less likely to be believed. As such, the trial judge did not err in disbelieving the second appellants defence that he thought that the bag contained only half a pound of heroin: Thongbai Naklangdon v PP [1996] 1 CLAS News 235 followed. cf : cases where although defence is not disclosed in s122(6), accused mentions it in previous/other statements eg long statements => no adverse inference can be drawn. These statements can be looked at. accused only expected to mention facts in answer to charge against him, not some supposed or speculative charge which prosecution could but did not bring

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Ronnie Tay Kok Poh v PP [1996] 1 SLR 185 - Held: o It was unfair to draw an adverse inference against the appellant for not denying the charge in his Section 122(6) statement when he had already made the denial in his Section 121 statement. o An accused is only expected to say things in his Section 122(6) statement in answer to the charge. He is not expected to say anything in answer to some supposed or speculative charge, which the prosecution could bring but did not. In the present case, none of the allegations involving the 2nd Defendant were mentioned in the charge. That being the case, the prosecution could hardly say that the appellant ought to have realized beforehand that 2nd Defendant would be giving evidence against the appellant on these allegations. There was thus no reason to expect the appellant to say anything about the 2nd Defendant in his Section 122(6) statement. Abdul Naseer Bin Amer [1997] 1 SLR 73

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Facts: A charged with murder. P case was that in the course of robbery, A stepped on the face of Japanese tourist, causing her death. As defence was that he stepped on her face accidentally. This was not mentioned in CS but disclosed this in investigation statement taken after CS, about 1 month after arrest. TJ refused to draw AI vs. A for not stating in CS that hed stepped on deceaseds face accidentally as hed stated this in his last investigation statement such that, in TJs words, he had not sprung the fact that he relied on his defence only at trial. A eventually acquitted of murder but convicted of robbery and P appealed. Held (Yong CJ): o Agreement with TJ. Sole issue is whether TJ had erred in finding that RD raised as to whether fatal injuries caused intentionally. Where omission is immaterial / irrelevant, no reason to expect accused to disclose it in s122(6) statement improper to draw adverse inference in such cases

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Khoo Kwoon Hain v PP [1995] 2 SLR 767 - accusd said that consoling victim and may have accidentally touched victim when consoling her, in 122(6) he merely said that he did not molest her. did not go into the accidental, consolation thing. Pros invited court to draw adverse inference. - Held that no adverse inference to be drawn. He had already denied molesting her. mere details of consoling incident no reason to expect accused to mention in 122(6). - Facts: The appellant was charged and convicted in the district court on two counts of aggravated outraging of modesty under s 354A(1) of the Penal Code. The appellant was a supervisor in a restaurant. The complainant was a waitress there. The complainant alleged that the appellant molested her and that in doing so, the appellant had wrongfully restrained her. - In convicting the appellant, the district judge held that the complainants testimony was corroborated by the testimony of her sister and the making of the police report, and that the court could convict without corroboration if it was totally convinced of the truth of the complainants testimony. He drew an adverse inference against the appellant for not disclosing his defence in his statements to the police. The district judge held that the appellant had lied because the complainant did not have a boyfriend, basing the finding on Zaitons evidence that to her knowledge, the complainant had no boyfriend. The district judge was of the view that the appellants lies corroborated the complainants testimony. He also declined to draw an adverse inference against the prosecution for not calling `aunty` as a witness. In reaching his conclusion, the district judge was of the view that the complainant had no reason to bring false evidence against the appellant. - The appellant appealed. - Held: o Whether the complainant did or did not have a boyfriend was immaterial and of little relevance. Similarly, whether the appellant did or did not console the complainant and tapped her on the shoulders had no bearing to the relevant issue, which remained whether the appellant molested the complainant as alleged.

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o As the alleged incident about consoling the complainant was immaterial and irrelevant, there was no reason to expect the appellant to disclose this when making his Section 122(6) statement. That being the case, it would be improper to draw an adverse inference against the appellant for failing to mention it Comments: o Four criteria had to be satisfied before a lie could amount to corroboration. The lie must first of all be deliberate. Secondly, it must relate to a material issue. Thirdly, the motive for the lie must be a realization of guilt and a fear of truth. Fourthly, the statement must be clearly shown to be a lie by independent evidence. o As the alleged lies related to immaterial issues, they could not amount to corroboration. In any event, there was no clear independent proof that what the appellant had told the court were lies. fact that it was accuseds first encounter with police will not exempt him from giving an explanation

Teoh Kah Lin v PP [1995] 1 SLR 213 Facts: The Appellant was charged with trafficking a controlled drug. He had submitted, amongst his grounds of appeal, that it was wrong for the learned trial judge to have drawn an adverse inference against the appellant under s 123(1) of the CPC, because it was the appellants first encounter with the authorities in Singapore. In particular, he argued that the trial judge was wrong in also drawing an adverse inference for his failure to make a request for a further statement to be taken. Held: First, it is for the trial judge to decide whether an adverse inference ought to be drawn under Section 123(1) of the CPC in all the circumstances of the case. Although we agree with counsel that an accused has no right to request for further statements to be taken after he has made his statement under Section 122(6) of the CPC, in view of the fact that the appellant stated that he had nothing to say at the moment, the trial judge was not wrong to take his failure to explain subsequently his situation as a circumstance in determining whether or not to draw an adverse inference under Section 123(1). D. Effect of failure to follow s122(6) procedure s122(5) CPC (or s24 EA), and not s122(6), governs admissibility non-compliance with s122(6) procedure is, however, relevant in considering what inference, if any, should be drawn such failure may also affect the weight to be accorded to the statement Tsang Yuk Chung [1990] 3 MLJ 264 - Held (Wee CJ): - s.122(6) itself does not provide for the admissibility of statements recorded there under. The admissibility of such statements must still be founded upon s.122(5) as one of the

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exceptions to s.122(1) which prima facie prohibits the use in evidence of any statement made by any person to a PO in the course of a police investigation. Tan Boon Tat [1990] 2 MLJ 466 - Held (LP Thean J): - Admissibility of s.122(6) statement not governed by that section but by either s.122(5) or s.24 EA. A failure to explain the charge and warning to A cannot afford a reason for excluding the statement made by A which is otherwise admissible. - However, failure to comply with s.122(6) may affect the weight to be attached to that statement. A statement admitted in evidence has yet to be tested as to its probative value whether its inherently credible or consistent with the facts and circumstances. In such an exercise, a failure to observe the s.122(6) procedure is a relevant factor. - If, on the other hand, no statement is made by A, the Court in determining whether A is guilty of the offence may by reason of such failure and depending on the circumstances, decline to invoke s.123(1) and draw AI vs. A. Chan Chi Pun v PP [1994] 2 SLR 6 - Facts: Point for determination was whether CS could be used as part of the prosecutions case. TJ only admitted CS after defence had been called and A had decided to testify in his own defence. This conclusion was reached based on the wording of the s.122(6) of the effect of failing to mention any fact sought to be relied on in defence it was argued that if A decided to make CS, thisd be in response to warninghence, any statement made would be for the specifically for purpose of preventing diminution of defence should he testify. Thus, statement should be inadmissible until defence is called. - Held (Yong CJ): o CS can be made part of P case. o Settled law that admissibility governed solely by s.122(5) which lays down only 2 conditions for admissibility of any statement (1) statement to be made to officer of specified rank; (2) proviso complied with ie must be no threat, inducement or promise. Further, s.122(5) makes provision for the special case where A does in fact testify in his own defence. The clear implication is that the statement is admissible whether A gives evidence or not. Sim Ah Cheoh v PP [1991] 1 SLR 150 - Held (LP Thean J): o [Applying Tsang Yuk Chang and Tan Boon Tat] o s.122(5) governs the admissibility of s.122(6) statements so s.122(6) statement is admissible so long as s.122(5) is satisfied o Cross-x of W during recording of CS is no part of the recording officers duty under s.122(6) and is improper. Nonetheless, this does not render statement inadmissible unless cross-x amounts to oppression. Admissibility Of Statements

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ADMISSIBILITY & USE OF STATEMENTS MADE TO POLICE OFFICERS BY ACCUSED PERSONS PG 219 - before 1960 one cardinal rule, statement made in the course of police investigations NOT admissible - 1960 (Act 1960) s. 122(5): o Before Arrest voluntary statement made to Inspector admissible as Evidence and to Impeach Credit (judicial discretion to admit voluntary statement) o After Arrest voluntary statement under caution and in substantial compliance with Schedule E to CPC admissible as Evidence and to Impeach Credit - 1973 (Act 21/73) only minimum rank charged to Sergeant - 1977 (Act 10/76): - s. 122(5) voluntary statement to Police Sergeant admissible. Discretion to admit involuntary statement removed. Caution abolished. - New s. 122(6) requirements for enforcement officer to explain and serve notice of warning on person charged or officially informed of Prosecution Adverse Inference from silence or non-disclosure. Corroboration s. 123(1). Admissibility Of Section 122(6) Statements - s. 122(5) CPC is the governing provision, by virtue of s. 122(7) CPC: voluntary STATEMENTS MADE TO NON POLICE LAW ENFORCEMENT OFFICERS - s. 122(1) 122(5) does not apply - statement under Notice of Warning s. 122(6) CPC statement not admissible under CPC but EA - OMMISSIONS relevant to draw adverse inference, to corroborate STATEMENTS OF WITNESSES - admissible. Only need to show that made statement. See EA. What proof is admnitted. - So long as proved, can be used. Also see cases where witneses turned hostile, because change their mind, etc so speak in favour of accused. - To counter this, see s147.3 and 147.5 witneses statement or evid in court may be contradicted by his previous statement given to investigating authorities and prosecution may apply to subst his evid in court with his earlier statement given to the investigating officers - no of cases where statements givn to officers although they later turn hostile Oral stmt made by accused whether before or after he is charged is admissible as evidence so long as it is made to or in the hearing of a police officer of or above rank of sergeant. See 122(5). But s 122(5) doesnt cover stmts made by other to the police other than accused. Oral stmts made by anyone other than accused would be hearsay and not

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admissible unless it came w/in parameters of s 378 (admissibility of out-of-court statements to be evidence of facts stated). See Rosli bin Othman. Thiruselvam S/O Nagaratnam V Pp [2001] 2 Slr 125 Admissibility of witness statement - Issue here pertains to admissibility of witness statement. - Held: - Read with s 17(2) of the EA, s 24 must be confined to confessions made by an accused person in the criminal proceedings in which he was charged. It did not apply to confessions made by a person who was at the time he made it, not an accused person but merely a witness. - Where s 147 EA was invoked and a previous statement of a witness who was not the accused in the proceedings before the court was used to crossexamine him and to prove the existence of certain facts stated therein, it had to be proved that the statement was made by the witness. - There was no requirement under s 147 to prove further that the witness made the statement voluntarily. This view was reinforced by a reading of s 147(6). However where the witness was himself the accused, the application under s 147 was subject to s 24 of the EA and also s 122(5) of the CPC, it was necessary to show that it was made voluntarily. If the statement was involuntary, it was relevant to determine what weight should be accorded to it. *******Note: Saving for exceptions to rule against hearsay in Evidence Act.

384. Nothing in this Chapter shall prejudice the admissibility in any criminal proceedings of any statement which would by virtue of the Evidence Act be admissible as evidence of any fact stated therein. VOLUNTARINESS Rationale for Voluntariness test? Reliability principle Disciplinary principle Privilege against self-incrimination Protective principle Judicial Integrity principle Do other legislative provisions or judicial developments in Singapore cast light on which is the true basis for the voluntariness test? See UK position in s76 PACE

1. Two limbs for voluntariness test : (a) objective - whether there is a TIP look at acts of police officer etc objectively and see whether amts to TIP.

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(b) subjective - whether TIP operated on mind of accused through hope of escape or fear of punishment connected with the charge - Chai Chien Wei Kelvin v PP [1999] 1 SLR 25. Put urself in shoes of accused and see whether induced. Facts: The appellant and one Bryan Yeo (the first accused) were jointly tried in the High Court. The first accused was charged with attempting to export not less than 2,109g of diamorphine (the drugs) from Singapore to Taipei. The charge against the appellant was that he had abetted the first accused by conspiring with him to export the drugs from Singapore to Taipei and that he had in pursuance of the conspiracy transported the drugs into Singapore and strapped them onto the body of the first accused, an offence under Section 7 read with Section 12 and punishable under Section 33 of the Misuse of Drugs Act. The first accused made a cautioned statement under Section 122(6) of the CPC. He also made a much longer statement under Section 121 CPC, which was recorded in two parts. Both of the first accuseds statements were admitted after a voir dire. In his Section 122(6) statement the first accused pleaded for leniency and said that he did not know the consequences were so serious. Goh gave a Section 121 statement. Leave was granted for his evidence to be given orally, but when Goh turned hostile in court the deputy public prosecutor applied to have his previous written statement admitted under Section 147 of the EA. The trial judge was satisfied that the statement was given voluntarily. The trial judge held that a prima facie case had been made out against both the first accused and the appellant who were called to enter upon their defence. In relation to the appellant, the trial judge found that there was evidence of conspiracy from the statements of the first accused and of Goh. In the event both elected to remain silent and offered no evidence in their defence. At the end of the trial, the trial judge convicted both the first accused and the appellant of the respective charges against them and passed the mandatory sentence of death. On appeal it was argued on behalf of the appellant that the statements of the first accused and of Goh considered together with the other evidence adduced by the prosecution did not establish the essential elements of the charge against the appellant beyond reasonable doubt. The main plank of the attack on the decision of the trial judge was that he ought not to have relied on the statements of the first accused and of Goh when they were inconsistent with the other evidence. In relation to the statements of the first accused, in particular, there were discrepancies inter se sufficient to nullify their evidential value so that they should be given little or no weight at all. They were also accomplice evidence and thus had to be treated with caution. Further the admissibility of the statements was challenged on the ground of involuntariness. Held: Dismissing the appeal: (1) The test whether a statement was a confession was an objective one, whether to the mind of a reasonable person reading the statement at the time and in the circumstance in which it was made it could be said to amount to a statement that the accused committed the offence or which suggested the inference that he committed the offence; Anandagoda v The Queen [1962] MLJ 289 and Chin Seow Noi v PP [1994] 1 SLR 135 followed. (2) The test of voluntariness was applied in a manner, which was partly objective and partly subjective. The objective limb was satisfied if there was a threat,

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inducement or promise, and the subjective limb when the threat, inducement or promise operated on the mind of the particular accused through hope of escape or fear of punishment connected with the charge. Dato Mokhtar bin Hashim v PP [1983] 2 MLJ 232 and Mohd Desa bin Hashim v PP [1995] 3 MLJ 350 followed. (3) Where voluntariness was challenged, the burden was on the prosecution to prove beyond a reasonable doubt that the confession was made voluntarily and not for the defence to prove on a balance of probabilities that the confession was not made voluntarily; Koh Aik Siew v PP [1993] 2 SLR 599 followed. It was only necessary for the prosecution to remove a reasonable doubt of the existence of the threat, inducement or promise, and not every lurking shadow of influence or remnants of fear Panya Martmontree v PP [1995] 3 SLR 341followed.

2. Legislation - 2 governing provisions : A. s24 EA Confession caused by inducement, threat or promise when irrelevant in criminal proceeding 24. A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him B. s122(5) CPC Admissibility of statements to police. 122. (5) Where any person is charged with an offence any statement, whether it amounts to a confession or not or is oral or in writing, made at any time, whether before or after that person is charged and whether in the course of a police investigation or not, by that person to or in the hearing of any police officer of or above the rank of sergeant shall be admissible at his trial in evidence and, if that person tenders himself as a witness, any such statement may be used in cross-examination and for the purpose of impeaching his credit: similar operative words in both provisions Statements/confessions are admissible unless making of it appears to the court: (a) to have been caused by any inducement, threat or promise (b) having reference to the charge against the maker of the statement/confession (c) proceeding from a person in authority and (d) sufficient in the Courts opinion to give the maker reasonable grounds for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. 3. Differences between s24 EA and s122(5) CPC

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1. S122(5) applies only to police officers and has a rank requirement ie sergeant and above: Are CNB, CAD, Customs or CPIB officers classified as police officers for purposes of s 122(5) CPC ? CNB o only investigate drug offences parent legislation is Misuse of Drugs Act. o In this act, provision saying that if CNB officers investigating offences under MDA, they wld have power of a police officer under s121, 122, 125 and 126. o (121 powers to record statement/ 122(6) and (8)/ 125 sign bond to appear in court) When record long statement, therefore, exercising powers under 121 given to poclie offier. o But when want to admnit this statement in evid, this is not under 122(5) which is not section that gives powers. It is merely an admissibility section. Needs to be recorded by police officer which CNB is not. So admissible only under section 24. o And before they can be admitted, they have to be confessions. If not, if long statement is recorded fr acused by CNB, then not admissible, contrast to police offier statement recorded during police investigations admissible under s122(5) which x oconfine statement to be confession only prov tt any statement whether confession or not, oral or writing, made at any time before or after charge admissible Customs officers o customs act has sn giving them power to record statement. Act x refer to CPC. It has specific provision which says that can record statement. Powers come fr customs act itself. Admissbility section s24 CPIB same. o Corruption offences special investigators have power to record statement fr accused and witnesses under s27 POCA, specifically provide for the powers. It does not refer to s121 unlike MDA. Ie some acts refer to s121 others provide for such pwers under the act itself. Admistted under s24 EA CAD o police officers, admissible under 122(5) egs of statements: o e.g. Section 27 Prevention of Corruption Act, Section 91 Customs Act, Section 104 of the Income Tax Act:

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Section 27 Prevention of Corruption Act Legal obligation to give information. 27. Every person required by the Director or any officer to give any information on any subject which it is the duty of the Director or that officer to inquire into under this Act and which it is in his power to give, shall be legally bound to give that information. Section 91 Customs Act Persons bound to give information or produce documents 91. (1) Every person required by the proper officer of customs to give information or to 31

produce any travel document or any document on any subject into which it is the officers duty to inquire under this Act and which it is in that persons power to give or produce shall be bound to give such information or to produce such document for inspection. (2) The proper officer of customs may specify the customs office or station or other place at which that person is required to give information or to produce any document. Section 104 Income Tax Act Admissibility of certain statements and documents as evidence 104. (1) Statements made or documents produced by or on behalf of any person shall not be inadmissible in evidence against him in any proceedings to which this section applies by reason only that he was or may have been induced to make the statements or produce the documents by any inducement or promise lawfully given or made by a person having any official duty under, or being employed in the administration of, this Act. (2) This section shall apply to any proceedings against the person in question (a) under section 95, 96 or 96A; or (b) for the recovery of any sum due from him, whether by way of tax or penalty.s Sim Ah Cheoh v PP [1991] 2 MLJ 353 o Admissibility of s.122(6) statement is governed by s.122(5) where its made to a police officer and by the EA where its made to a narcotics officer. Tan Boon Tat v PP [1990] 2 MLJ 466 o Confession made to a narcotics officer (of ANY rank) is admissible in evidence provided that the provisions of s.24 EA are complied with. Tan Siew Chay v PP [1993 ] 2 SLR 14 o Facts: AP argued that LS made to SNO inadmissible as itd not been made to a PO above the rank of sergeant as required by s.122(5). o Held: (LP Thean J): o Statement admissible. o CNB officers empowered under s.32 MDA with powers of PO under, inter alia, s.121 CPC cant have been legislative intent to empower CNB officers to record statements and yet render such a statement inadmissible in evidence. o Admissibility of the LS is governed by the EA. Settled beyond doubt that CNB officers are not POs and that statements made to CNB officers are not subject to s.122(1) CPC or ss. 25, 26 EA. Choo Pit Hong v PP [1995] 2 SLR 255 o Facts: The appellant was charged with two counts of intentionally giving false evidence to officers from the Commercial Affairs Department (CAD) while being legally bound by an express provision of law to state the truth. During the trial, it was alleged that the statements given to the CAD officers were not given voluntarily but were made as a result of threats and inducements. A voir dire was held,