Mohamed Salleh v Public Prosecutor

• Judge: Choor Singh J
• Judgment Date: 14 November 1968
• Neutral Citation: [1968] SGFC 16
• Citation: [1968] SGFC 16
• Defendant Counsel: Tay Soo Tee (Deputy Public Prosecutor)
• Published date: 19 September 2003
• Plaintiff Counsel: Dato' David Marshall (David Marshall)
• Date: 14 November 1968
• Docket Number: Criminal Appeal No Y3 of 1968
• Court: Federal Court (Singapore)
• Subject Matter: Burden of proof on accused,Criminal Law,Criminal Procedure and Sentencing,Murder,Right of accused to make unsworn statement,Statements,Provocation,Section 106 Evidence Ordinance 1965 (No 39 of 1965),Effect of trial judgeÂ’s comment as to the probative value of unsworn statement,Offences,Unsworn statement from the dock,To raise a reasonable doubt,Unsworn statement,Sections 300 and 302 Penal Code (Cap 119, 1955 Rev Ed)

The appellant was charged in the High Court of Singapore before a jury on a charge of murder, the charge being as follows:

THAT YOU, Mohamed Salleh bin Daim, on or about 15 August 1967 at about 7.25pm at the Bukit Timah Fire Station, Upper Bukit Timah Road, eight ms Singapore, committed murder by causing the death of one Rahmat bin Mohamed and you have thereby committed an offence punishable under s 302 of the Penal Code (Cap 119).

At the close of the case for the prosecution the trial judge through an official interpreter of the court called on the appellant for his defence, gave the appellant the usual warning and informed the appellant that he could consult his counsel if he so wished.

The usual warning is ordinarily in the following terms: `You may give evidence on oath in which case you have to do so from the witness box where you may be cross-examined like any other witness, or you may make a statement from the dock to the jury in which case you cannot be cross-examined by anyone, or you may remain silent`, and it is common ground that a `warning` to this effect was given to the appellant.

It appears to be not in dispute that the appellant consulted his counsel and then elected to make a statement from the dock.

After the appellant made his unsworn statement from the dock, no other witness was called for the defence. The trial judge then summed up to the jury and after a short retirement to consider their verdict they returned a unanimous verdict of guilty of murder as charged. The appellant now appeals against his conviction.

The first point raised by the appellant is that in the Chapter of the Criminal Procedure Code which deals with trials before the High Court, as there is no provision for an accused to make an unsworn statement from the dock, it was an irregularity, which could be cured only by a re-trial, for the trial judge to tell the appellant he had a choice of whether to give evidence on oath from the witness box or to make an unsworn statement from the dock. It is submitted that this irregularity had misled the appellant to his prejudice and deprived him of a fair trial because, if the choice of making an unsworn statement from the dock had not been offered to him, he would undoubtedly have given evidence on oath. Another submission is that it was also prejudicial because, having offered the appellant the right to make an unsworn statement from the dock, the trial judge in his summing up told the jury that the unsworn statement was practically worthless as it was not on oath and as the appellant could not be cross-examined on it.

In our judgment, the right of an accused at his trial on a criminal charge to make an unsworn statement from the dock is not a procedural right but a substantive right of an accused and accordingly does not depend on whether or not there is a specific provision for it in the Criminal Procedure Code. It seems to us beyond doubt that under our system of administration of justice, and it has been so throughout the entire history of our courts, a person accused of a criminal offence before an established court of justice has at his trial, as part of his defence, the right to make an unsworn statement from the dock if he wishes to do so. In our view this right can be taken away only by an express statutory provision to that effect.

With regard to the question of prejudice arising out of the trial judge`s comment on the probative value of the unsworn statement of the appellant, we are of the opinion that it is proper for a judge in summing up to remind the jury that a statement from the dock is not sworn evidence which can be the subject of cross-examination; that they can attach to it such weight as they think fit and that they should take it into consideration in deciding whether the prosecution have proved their case. In the present case the trial judge directed the jury as follows:

Well, members of the jury, that is the case for the prosecution. Now what is the accused`s defence to this charge? You must also consider his evidence, or rather you must consider his defence. The accused, as you know, did not give evidence on oath. He made a statement from the dock and he could not be cross-examined by the prosecution, he could not be questioned by me, he could not be questioned by you. Members of the jury, you will naturally not be inclined to give so much weight to what he said in the dock as you would if he gave evidence, because when a man gives evidence one can cross-examine on it and test it and generally have a much better opportunity of assessing it. Of course, you must not reject the statement of the accused, you must consider it and give it such weight as you think it is worth having regard to the other evidence that you have.

In our opinion a direction in those terms was perfectly proper and in no way prejudicial to the...