Case Note

Date01 December 2012
Published date01 December 2012
AuthorCHEN Siyuan LLB (Hons) (National University of Singapore), LLM (Harvard); Assistant Professor of Law, Singapore Management University. Nicholas POON LLB (summa) (Singapore Management University); Practice Trainee, Rajah & Tann LLP (at the time of writing).
Citation(2012) 24 SAcLJ 533


Muhammad bin Kadar v PP

[2011] 3 SLR 1205

The Court of Appeal in Muhammad bin Kadar v PP[2011] 3 SLR 1205 (“Kadar”) formally recognised the judicial discretion to exclude evidence as an integral part of the law on criminal evidence in Singapore. This discretion, the court held, would help ensure that all evidence coming before the court would be as reliable as possible. While this commentary agrees that the foundational basis for the exclusionary discretion doctrine is desirable, it suggests that there are difficulties with the application of the doctrine. An alternative approach that works around the difficulties is canvassed for consideration.

I. Introduction

1 Two brothers, Muhammad and Ismil, were alleged to have robbed and murdered a woman in her own flat and in the presence of her bedridden husband. Because of the constantly changing testimonies, much of the trial and appeal centred on determining who was at the crime scene and who had committed the robbery-murder. Several statements were made to the police after the brothers were arrested, but it suffices for present purposes to focus on the first two statements made by Ismil. His first statement was made to SSI Zainal (who had 30 years of investigative experience) in a police car near the crime scene, after SSI Zainal had told the police officers accompanying Ismil to leave them alone. Despite initially denying knowledge of the offence, Ismil confessed to having “slash[ed]” a female the day before.1 Although there were other colleagues around who had field diaries, this statement was recorded on a piece of paper, and only recorded in SSI Zainal's field diary after lunch. Notably, a different word, “stabbed”, was used.2 Ismil gave his second statement at a police centre. He said that he had gone to the deceased's flat to borrow money and he had taken a knife from her flat; he also said he saw an old man lying on a bed in the flat, and that he had acted alone in the crime. SSI Zainal recorded this in his field diary also only after lunch. No warning was administered to Ismil before both statements were recorded, and both statements were neither read back to Ismil nor signed by him.

2 The Court of Appeal held that given the circumstances in which both statements were obtained, the basic procedural requirements found in the Criminal Procedure Code3 (“CPC”) and Police General Orders had been contravened. The court further said that both statements seemed to have been “obtained in deliberate non-compliance with the procedural requirements … rather than mere carelessness or operational necessity”,4 and went on to declare:5

[T]he breaches of s 121 of the CPC and the Police General Orders are serious enough to compromise in a material way the reliability of the [two statements] … it is not apparent to us that the probative value of the two statements can be said to exceed the prejudicial effect of the statements against their maker. It could, perhaps, be said that this is more so in respect to the police car statement … SSI Zainal admitted that he was aware that a slash is different from a stab …

[W]e find that both statements should have been found inadmissible under the exclusionary discretion. The burden was on the Prosecution to convince the court that the probative value of each of the two statements, which had been compromised by the manifest irregularities that took place when each of them was supposedly recorded, was higher than their prejudicial effect. As breaches of the CPC and the Police General Orders also appeared to be deliberate, the explanation given needed to be especially cogent …

[emphasis added]

3 This declaration was prefaced by the following passages:6

[T]here is no reason why a discretion to exclude voluntary statements from accused persons should not exist where the prejudicial effect of the evidence exceeds its probative value … the very reliability of the

statement sought to be admitted is questionable … this is an area of judicial discretion that Parliament has left to the courts … Probative value is … the crucial factor vis-à-vis admissibility or non-admissibility of statements from accused persons under the CPC. This is already the settled position under the [Evidence Act] …

[P]rocedural irregularities may be a cause for a finding that a statement's prejudicial effect outweighs its probative value … the rules … for the recording of statements are … to provide a safeguard as to reliability. The same can be said in respect to the Police General Orders …

… in Singapore, the law provides police officers with great freedom and latitude to exercise their comprehensive and potent powers of interrogation in the course of investigations. This means that the evidential reliability of any written statements taken from accused persons rests greatly on the conscientiousness [of the police officers] …

[W]ritten statements taken by the police are often given more weight by finders of fact as compared to most other kinds of evidence. This is because formal statements taken by the police have the aura of reliability

… All that is required for a miscarriage of justice to occur is for [a] police officer to record [a] statement with embellishments … Alternatively, a police officer may be indolent …

Police investigators are aware when they record statements that they are likely to be tendered as evidence before a court and there is therefore an uncompromising need for accuracy and reliability… a court should take a firm approach in considering its exercise of the exclusionary discretion in relation to statements recorded by the police in violation of the relevant requirements of the CPC and the Police General Orders …

[emphasis in original]

II. Commentary

A. Overview of our analysis

4 The overarching theme of this piece thus pertains to identifying and conceptualising the touchstones for the admissibility of procedurally irregular evidence (such as the statements in Kadar), and more broadly, touchstones for the admissibility of all evidence in criminal proceedings.7 With regard to the former, it is a trite principle that

procedurally irregular evidence is admissible, although less weight may be attached if necessary.8 While Kadar reaffirmed this general rule,9 it emphasised that the court also has the discretion to exclude procedurally irregular evidence that would otherwise be admissible if the prejudicial effect of the evidence outweighs the probative value. This is known as the exclusionary discretion doctrine. Although this doctrine is of some pedigree in the common law,10 it has been plagued with numerous intractable problems and, as will be submitted, should be approached with caution. For instance, not long after Kadar was decided, it was pointed out that:11

References to the weighing of probative value and prejudicial effect/prejudice, while perhaps conventional in local discourses of Evidence Law, are always problematic. What exactly do these two terms mean? Certainly, there have been attempts at illustrations and definitions, but even assuming these attempts are accepted, at least three further questions arise: do they have a consistent application in all the different exclusionary rules found in the [various statutes]; how exactly does one balance the two; and how do they relate to the contiguous concepts of relevance (legal and logical), weight, admissibility, and the like?

5 This commentary attempts to address the foundational issues behind the exclusionary discretion doctrines and makes the following conclusions:

(a) First, the doctrine's test of balancing probative value and prejudicial effect (the “balancing test”) remains unclear as to definition and operation.12

(b) Second, cases have thus far avoided thorough discussions on the fundamental basis/rationale of the doctrine,13 resulting in the lack of a coherent theory to sustain its continued invocation.14

(c) Third, the exclusionary discretion doctrine should be avoided in our jurisprudence from henceforth. The very existence

of this doctrine had, in fact, been coloured with some doubt,15 following the seminal case of Law Society of Singapore v Tan Guat Neo Phyllis16 (“Phyllis”).

(d) Fourth, notwithstanding the difficulties with the exclusionary discretion doctrine, Kadar establishes, albeit implicitly, imperative foundations toward recognising a sounder and more concrete approach of reliability and relevance as the touchstones for admissibility of all evidence in criminal proceedings.17 Such an approach is consistent with the provisions, principles, and purposes of the Evidence Act18 and Criminal Procedure Code 201019 (“CPC 2010”), to which all evidence in criminal proceedings must pass muster.

6 Before proceeding, it is noted that although Kadar did not express a view on the application of the doctrine beyond statements to the police, the doctrine is unlikely to be (nor intended to be) so narrow in scope. This is because Kadar affirmed R v Sang20 (“Sang”), in which the House of Lords had explicitly acknowledged the existence of a general discretion to exclude evidence if its prejudicial effect outweighs its probative value.21 Although each Law Lord in Sang described the exclusionary discretion in their own terms, all of them regarded this discretion as being general and not confined to any particular exclusionary rule of evidence.22 This aspect of Sang was subsequently adopted in inter alia, Phyllis.23 In so far as Kadar cited Sang and Phyllis in support of the exclusionary discretion doctrine, it can be safely inferred that the court can exercise its exclusionary discretion vis-à-vis the admissibility of all evidence in criminal proceedings.24

B. Problems with the balancing test

7 Although the balancing test as currently formulated has been around for decades, few attempts have been made to properly delineate

the scope and...

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