Citation(2012) 24 SAcLJ 60
Published date01 December 2012
Date01 December 2012

Confessions and Statements by Accused Persons Revisited

As the provisions on admissions and confessions in the Evidence Act are ported over to the new Criminal Procedure Code substantially unchanged, the article examines the developments in case law and in other fields (such as behavioural sciences). It is argued that the old voluntariness formula remains difficult to apply even taking into account the valiant judicial attempts to rationalise this area of the law. It examines the incorporation of the doctrine of oppression, and discusses the problems of procedural irregularities as revealed in recent decisions. The article makes the case that there should have been more substantial amendments to the law.

I. Introduction

1 When one reads reports of criminal trials in Singapore, one is usually struck by the frequent, even pervasive, use of statements by accused persons tendered in evidence by the Prosecution; very often, a string of statements taken from them in custody. The reliance (or over reliance) on accused's statements by the Prosecution is regarded by some, Stephen1 included, as unhealthy for the criminal justice system. After all, is it not the case that the so-called Anglo-American criminal justice system is based on the adversarial system and on inspiring principles such as nemo debet prodere se ipsum (no one ought to be compelled to betray himself)2? Yet questioning by law enforcement agents forms an important part of the criminal process in modern states, and there is no doubt that without it there would be many

criminals today that would go unpunished for lack of evidence. So, as the Minister pointed out on the second reading of the Criminal Procedure Code Bill 2010, it is a question of searching for the right balance between protecting the community from criminal acts, and protecting the rights of the individuals from coercive acts by state agents charged with the duty of investigating crime and putting away the guilty. On the one hand, there is the right of individuals to be presumed innocent and to be treated as such until found guilty in a court of law, and on the other, the tough duty of investigating crime by law enforcement agents should not be unduly hamstrung by the rules and procedures that govern interrogations and the use of statements by the accused as evidence. The Minister candidly admitted that this is an evolutionary process and that there will probably never be a balance that would command universal assent.

2 This article accepts the difficulty of attaining a balance that would satisfy all, but takes the view that there should have been more done in evolving the law, which of course is the shared responsibility of the Legislature, Executive and Judiciary, as well as the legal profession. It is here proposed to examine the provisions relating to confessions and statements by accused persons that are found in the new Criminal Procedure Code (“CPC 2010”), which were virtually left unaltered from the old one3 (a case of old wine in a new bottle?) and to review the case law in the area that saw the most decisions, including controversial ones in the last 20 years. One inference could be that as far as the law enforcement agencies are concerned, the current provisions reflect the correct balance already. It is not so obvious, however, judging from the debate on the Bill (Second Reading) in Parliament. Among the issues raised in the Debate included those relating to provisions concerning the admissibility of statements made by suspects under questioning by law enforcement agencies,4 which were excised from the Evidence Act5 and re-enacted in the new CPC 2010 with some amendments.6 Unfortunately, the preoccupation with one rule (relating to statements obtained from suspects by trickery or when they were drunk) deflected attention away from other potentially more troublesome issues such as

leaving the much-discredited formula of voluntariness untouched, other than including in it the idea of “oppression”.

3 While the Minister pointed out that the inclusion of “oppression” was simply consolidating case law, it nonetheless remains “an indefinite and highly relative term”,7 and it may be useful to examine how, or whether, it could ever be regarded as “the touchstone for determining … voluntariness”. The issues that need to be addressed here are first, what does the doctrine of “oppression” entail generally; second, what is its relationship to the doctrine of “voluntariness” in the statute and case law; and third, what are the likely developments in the law resulting from the new formulations and how they may differ from current case law.

4 Other than the abovementioned issues, there is good reason to review the other provisions of the CPC 2010, including Explanation 2 of s 258(3).8 During the Debate, MPs proposed removing Explanation 2 (intoxication or inebriation not a reason for exclusion of confessions so obtained). The proposal was not accepted. But on principle, this matter should be re-considered. For instance, should statements obtained by deception be a ground for exclusion where it is flagrant misconduct by the officers, overstepping the bounds of public decency? In similar vein, should statements obtained from inebriated suspects be excluded for its poor probative value as measured against its prejudicial effect? Does the fact of inebriation or deception affect findings of voluntariness in its traditional sense, or oppression? Should these matters be decided by judicial discretion rather than by rule?

5 There are also other unresolved issues in this very important area of the law, particularly the use of confessions of accused persons to incriminate co-accused and its unhappy relationship with the hearsay provisions in the Code.9 Judicial disquiet about the use of such evidence

went unheeded; the offending section re-enacted without amendment.10 More generally, this area of the law seems to receive less attention than changes to other areas of the criminal process, notably discovery. Despite modern findings by psychologists in the area of questioning of suspects doubting the voluntariness formula, or the advent of new technologies that could be utilised in this area to minimise false confessions, the law can be described as having stagnated, very much a relic from the 19th century, whose time, many would have thought, has come and gone. It is pertinent also to examine how judicial decisions have in fact tried to remove several problems inherent in the traditional formula, such that if the formula were to be redrafted, it would look rather different from its present form.
II. Preliminary points

6 Several general points at this stage may be noted: first, by re-enacting the provisions of the Evidence Act relating to admissions and confessions in the new CPC 2010 the scope for development of a more principled approach to this subject is facilitated. This is because the “gap filling” provision (s 6) in the CPC 2010 is a power-conferring rule stating that where there is no special provision in the Code or “other law”, “such procedure as the justice of the case may require, and which is not inconsistent with this Code or such other law, may be adopted”.11 This contrasts sharply with the repealing provision in s 2(2) of the Evidence Act that provides for the repeal of any rule that is “inconsistent” with the Act, and by extension, the adoption of any subsequent rule that is “inconsistent” with the Act. A power to adopt or devise a “just procedure” is very different from a duty not to import or devise a rule that is mutually repugnant or contradictory to the provisions of the Code.

7 Second, as the CPC 2010 is a new Code and quite different in approach from the Evidence Act, the courts may want to re-examine decisions based on the Evidence Act provisions with its troubling s 2(2).12 This is not to say of course that the provisions in the

CPC 2010 on statements and confessions were intended to create new law or that they render the existent case law irrelevant; it merely means that the courts will be able to chart new directions in interpreting the Code consonant with the general principles found in the new Code as well as in Parliamentary speeches especially those of the Law Minister.

8 Third, one must not lose sight of the main purpose for which this area of the law exists, namely, to ensure that the guilty, and only the guilty, are convicted; correspondingly, the law must assiduously seek to avoid convicting the innocent. Essentially, this means the risk of false confessions must be minimised as far as possible, assuming in an imperfect world, that we cannot avoid false confessions altogether. Given the probative worth of confessions as evidence of guilt, reliance on false confessions are very likely to lead to wrongful convictions. As the Law Minister in the debate on the CPC 2010 Bill observed, every individual has a “right not to be wrongly convicted”.13 A wrongly admitted confession carries with it particularly severe forensic risks: one, the conviction of the accused could be based on it alone; two, even a co-accused could be convicted on the confession; three, its admission in evidence may leave the accused with no choice but to testify, and in particular to rebut the “false” confession;14 four, the burden on the Prosecution to proffer other incriminating evidence is usually significantly reduced; and finally, the existence of an “admissible confession” might trigger a plea of guilty, even when the accused might otherwise have a contestable case. The problem is further exacerbated by the phenomenon of false confessions that are made voluntarily.15

9 Fourth, the statement of principles articulated by the Law Minister in his speech on the second reading of the CPC 2010 Bill is

worthy of note – he said that the key principles that shape the criminal justice system are the following:16

(1) Every person is presumed innocent. One is guilty only upon conviction by a...

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