accusedstm&voirdire

8/9/2019 AccusedStm&VoirDire

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ACCUSED STATEMENTS & VOIR

DIRE

DPP Dk. Hjh. Hana Molina bte Pg. Hj.

MohammadLegal Counsel, AGC

24th October 2005


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RECORDING ACCUSED STATEMENTS

The name of the recording officer is to be clearly

stated and the name of anyone else present

witnessing the accuseds statement taking, if any

State the date, time and place the statement is to

be recorded

Statements to be written clearly & legibly


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Make sure the accused is in good condition both

physically and mentally

Inform the accused why his statement is being

taken

Make sure the accused agree to give hisstatement voluntarily- no hesitation


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Ask the accused whether he would like to record

his statement himself or prefer the officer to

record for him

Ask the accused in what language would he like

his statement to be taken


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If accused prefer to record his statements

himself, state how long he recorded his own

statements

Make sure what was written by the accused at

that time is able to be read (legible)


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RECORDING ACCUSED STATEMENTSMake sure the accused understood the language of the

statement taking- a qualified interpreter to assist the

accused

Ask the accused in what manner would he like his

statements to be recorded- narrative or Q&A

If accused prefer Q&A, record the questions


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If the accused mention any name of any person

in his statements, always ask the accused the full

name of that person

State the time when the statement taking is

completed

Read back the statement which had beenrecorded to the accused


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RECORDING ACCUSED STATEMENTSAsk the accused if he understood what was read back to

him

Invite the accused to sign his statement if he agreed with

the contents of his statement

Give the accused an opportunity to make any

corrections, amendments or additions to his statements


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RECORDING ACCUSED STATEMENTS Do NOT at any time during or before the statement

taking, apply any force, threats or induce the accused to

obtain his statements

If accused claim that he is not in good condition- arrange

for medical officer to examine accused before his

statement is taken


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USING THE ACCUSEDS STATEMENT


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Accuseds statementsCPC-Power of police officer to record statements

Section 117(1) Ordinary statement

Section 117(3) Notice of warning statement

NOTE: Voluntariness of the making of the statement is

an issue that always arises during trial- voir dire: toestablish if statement was made voluntarily or not


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Accuseds statementsOther statements

Recorded by other investigation agencies e.g. NCB,

ACB etc.

Section 20 Misuse Drugs Act: An NCB officer shall have

all powers of a police officer under the CPC. Hence, an

NCB officer can also record accuseds statements


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Types of statements Positive statements Confessions/admissions

Negative statements Not merely bare denials, but can also be detailed defences

Potential for contradicting accused later, if he changes hisdefence (Impeachment proceedings)

Mixed Statements


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W

hy use statement?As part of prosecutions case

To prove facts (especially mens rea) Confessions/admissions

To undermine the accuseds defence Confining the available defences

During defence case

To impeach accuseds credit under section 155 of the EvidenceAct.

To contradict him using his previous inconsistent statement andthereafter admit the contents of the statement


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Admissibility Provision

Section 117(6) of the Criminal Procedure

Code


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WHAT IS A VOIR DIRE


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Voir Dire

Also known as a Trial-within-a-trial

It is conducted when the admissibility of an

accuseds statement is challenged on the

grounds of involuntariness

Conducted in the course of the main trial as a

separate process evidence in voir dire cannotbe used in the main trial


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Section 117(2) of the CPC states that the court shall

admit under subsection (1) a statement made by an

accused, only if the prosecution satisfies the court thatthe statement was voluntary, that is to say that it was not

obtained by violence, inducement, threat or oppression

by a person in authority


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WHEN TO GO THROUGH A VOIR DIRE?


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Accused claims that his statement was not given voluntarily

Accused denies making the statement

Prosecutions evidence suggests that accuseds statement wasobtained by fear or prejudice or hope of advantage.

Beh Chai Hock v PP [1991] 3 SLR 495 The necessity for a voir direencompasses situations other than when the voluntariness of aconfession is in dispute. As a general rule, it would cover all situationswhen admissability of a confession is challenged. In this case, since thequestion of the identity of the recorder of the statement was effectively achallenge to its admissability, the trial judge should held a voir dire toresolve the question of admissability.

When ?- Legal Basis


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When? - Practical Basis

When the prosecution seeks to admit the accuseds

statement as evidence either as part of the prosecutions

case or to impeach accusedd credit in crossexamination

When the accused claims that he had not given the

statement voluntarily or that he had not given thestatement at all


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BURDEN OF PROOF


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PREPARATION FOR VOIR DIRE


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Duty of Prosecution

As a general rule the prosecution must call as

witnesses all persons who had anything to do

with the accused during the period before thestatement was made- PP v Kalaiselvan [2001] 2

MLJ 157 HC


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Who to call at voir dire

Recorder of the statement (not necessarily the

investigating officer)

Witnesses to the statement takingArresting Officer(s)

Escorting Officer(s)

Interpreter(s)

Medical Officer

Others (e.g. witnesses at the scene, cell mates, sentry

lock up , etc)


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Documents to look at

Station diaries

Lock up diaries/ register

Report book

Pocket books of arresting /escorting officers

Investigation Officers investigating diary

Medical reports


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Key areas to cover

When (date/time) was statement recorded

Where? (e.g. I.O.s room, lock-up interview room)

Start time and end time Is the length of time takenreasonable

Was accused under arrest then?

Was an interpreter used? Language spoken

Was statement affirmed by accused to be true and

correct?Was amendments allowed?

Identification of signatures on the statements


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INDUCEMENTTHREAT

PROMISE


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The test was whether the statement was obtained from

him either because some person in authorithy exercised

fear or prejudices or held out hope of advantage PPv Tan Boon Tat [1990] 2 MLJ 466

The court has to judge the mind of the person making

the statement rather than that of the person in authorithy

PP v Law Say Seck & Ors [1971] 1 MLJ 199


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Threat:

Gulam v PP [1999] 2 SLR 181

looking fierce and threatening does not constitute threat Osman bin Din v PP [1995] 2 SLR 129 You better tell the truth is not enough to be defined as threat

Poh Kay Keong v PP [1996] 1 SLR 209 Threat against family members was enough to find the

statement inadmissable


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Inducement or promise:

Reduced sentence or that accused would be made a

prosecution witness and case against him would be

dropped or that he should have nothing to worry aboutas the appropriate charge would be made out

PP v Forster Frank Edald Heinrich [1988] 2 MLJ 594 accused would be deported if he made statement held

statement inadmissible


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Ismail bin Rahman v PP [2004] 2 SLR 74 Police would speak to the judge and try to get a lesser

sentence Lau Kee Hoo v PP [1984] 1 MLJ 110 The fact that the accused was told that he will be treated

leniently and would not be tried in court and that was theaccuseds understanding would make the statement

inadmissable


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OPPRESSION


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Meaning:

Exercise of authority or power in a burdensome, harsh

or wrongful manner. Unjust or cruel treatment. The

imposition of unreasonable or unjust burden R vFulling [1987] 2 All ER 65

Something which leads to sap or has sapped that free

will which must exist before a confession is voluntary R

v Priestly [1966] 50 Cr App R 183


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Question of fact:

Length of time of questioning

Length of time between periods of questioning

Whether accused given refreshment

Characteristics of person making statement


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Examples:

Interrogated intensively and denied rest and lunch, kept

ignorant of charges, prescribed formalities breached can

amount to oppression- Tan Choon Huat v PP [1991] SLR805

Prolonged periods and extremely odd hours of

interrogation. Accused was old (54 years old) and

deprived of prayer time Dato Mokhtar bin Hashim v PP

[1983] 2 MLJ 232


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Handcuffed when recording statements was

found to be oppresive PP v Mohd Fuzi [1989] 2

MLJ 652

Intensive interrogation for 18 hours may amount

to statement being involuntary PP v Lim KiatTat [1990] SLR 364


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Persistent questioning or even robust interrogations is

necessary for the police process and does not, without

more, amount to oppression - Panya Martmontree v PP[1995] 3 SLR 341

Minor discomfort not sufficient as no necessity for

interrogators to remove all discomfort - Yeo See How vPP [1997] 2 SLR 390

No oppression found:


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