Mohamed Salleh v Public Prosecutor

JurisdictionSingapore
CourtFederal Court (Singapore)
JudgeChoor Singh J
Judgment Date14 November 1968
Neutral Citation[1968] SGFC 16
Citation[1968] SGFC 16
SubjectBurden 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)
Plaintiff CounselDato' David Marshall (David Marshall)
Date14 November 1968
Defendant CounselTay Soo Tee (Deputy Public Prosecutor)
Publication Date19 September 2003
Docket NumberCriminal Appeal No Y3 of 1968

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...

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