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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RECORDING ACCUSED STATEMENTS
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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RECORDING ACCUSED STATEMENTS
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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RECORDING ACCUSED STATEMENTS
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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RECORDING ACCUSED STATEMENTS
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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