ACCUSED STATEMENTS &

VOIR DIRE
DPP Dk. Hjh. Hana Molina bte
Pg. Hj. Mohammad
Legal Counsel, AGC
24th October 2005
RECORDING ACCUSED
STATEMENTS
 The name of the recording officer is to
be clearly stated and the name of
anyone else present witnessing the
accused’s statement taking, if any
 State the date, time and place the
statement is to be recorded
 Statements to be written clearly & legibly
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 his
statement voluntarily- no hesitation
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
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)
RECORDING ACCUSED
STATEMENTS
 Make 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
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
been recorded to the accused
RECORDING ACCUSED
STATEMENTS
 Ask 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
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
USING THE ACCUSED’S
STATEMENT
Accused’s statements

CPC-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: to establish if statement was
made voluntarily or not
Accused’s statements

Other 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 accused’s statements
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 his defence (Impeachment proceedings)
 Mixed Statements
Why use statement?
As part of prosecution’s case
 To prove facts (especially mens rea)
 Confessions/admissions
 To undermine the accused’s defence
 Confining the available defences
During defence case
 To impeach accused’s credit under section 155 of the
Evidence Act.
 To contradict him using his previous inconsistent
statement and thereafter admit the contents of the
statement
A judgement call
 Don’t use a statement just because you have
one, even if it is a confession
 Factors to consider:
 Alternative sources of evidence
 Usefulness of statement
 Potential inconsistencies with other evidence
 Use as part of prosecution’s case or reserve for
impeachment/ cross examination
 Whether its voluntariness is doubtful
Admissibility Provision

Section 117(6) of the Criminal

Procedure Code
WHAT IS A VOIR DIRE
Voir Dire

 Also known as a “Trial-within-a-trial”

 It is conducted when the admissibility of
an accused’s statement is challenged on
the grounds of involuntariness
 Conducted in the course of the main trial
as a separate process – evidence in voir
dire cannot be used in the main trial
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 that the
statement was voluntary, that is to say that it
was not obtained by violence, inducement,
threat or oppression by a person in authority
WHEN TO GO THROUGH A VOIR
DIRE?
 When ?- Legal Basis
 Accused claims that his statement was not given voluntarily
 Accused denies making the statement
 Prosecution’s evidence suggests that accused’s statement
was obtained by fear or prejudice or hope of advantage.
 Beh Chai Hock v PP [1991] 3 SLR 495 “The necessity for a
voir dire encompasses situations other than when the
voluntariness of a confession is in dispute. As a general
rule, it would cover all situations when admissability of a
confession is challenged. In this case, since the question of
the identity of the recorder of the statement was effectively
a challenge to its admissability, the trial judge should held a
voir dire to resolve the question of admissability.”
When? - Practical Basis

 When the prosecution seeks to admit the

accused’s statement as evidence either as
part of the prosecution’s case or to impeach
accused’d credit in cross examination
 When the accused claims that he had not
given the statement voluntarily or that he had
not given the statement at all
BURDEN OF PROOF
Burden of Proof

The onus is on the prosecution to prove beyond

all reasonable doubt that the accused gave his
statement to the recording officer voluntarily –
meaning no threat, promise or inducement was
made to the accused, or that the recording of
the statement was not oppressive and it is not
for the defence to prove voluntariness- PP v
Chong Boo See [1988] 3 MLJ 292
PREPARATION FOR VOIR
DIRE
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 the statement was
made- PP v Kalaiselvan [2001] 2 MLJ
157 HC
Who to call at voir dire
 Recorder of the statement (not necessarily the
investigating officer)
 Witnesses to the statement taking
 Arresting Officer(s)
 Escorting Officer(s)
 Interpreter(s)
 Medical Officer
 Others (e.g. witnesses at the scene, cell mates, sentry
lock up , etc)
Documents to look at

 Station diaries
 Lock up diaries/ register
 Report book
 Pocket books of arresting /escorting officers
 Investigation Officer’s investigating diary
 Medical reports
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 taken
reasonable
 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
INDUCEMENT
THREAT
PROMISE
 “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” – PP v 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
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
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 about as 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
 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 the accused’s understanding would
make the statement inadmissable
OPPRESSION
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 v Fulling [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
Question of fact:

 Length of time of questioning

 Length of time between periods of
questioning
 Whether accused given refreshment
 Characteristics of person making
statement
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] SLR 805

 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
 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 Kiat Tat [1990] SLR 364
No oppression found:
 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 v PP [1997] 2 SLR 390
Thank you