THE CONCEPT OF VOLUNTARINESS IN THE LAW OF CONFESSIONS

Published date01 December 2005
Citation(2005) 17 SAcLJ 819
AuthorDorcas QUEK LLB (Hons) (National University of Singapore); Assistant Registrar, Supreme Court of Singapore.
Date01 December 2005

The common law principle, that no statement by an accused is admissible in evidence unless it is a voluntary statement, is enshrined in s 122(5) of Singapore’s Criminal Procedure Code. Both the UK and Australia have abandoned this principle and replaced it with a “reliability test”; statements are excluded only if they are likely to be unreliable. This article questions the desirability of adopting a similar position in Singapore. It examines the jurisprudential basis of the voluntariness concept, the alleged defects of the concept and the applicability of the English and Australian reforms to Singapore. The article concludes that the reliability test should not be adopted because of potential negative ramifications.

I. Introduction

1 The law of confessions, according to Andrew Ashworth,1 presents a classic conflict in criminal procedure between crime control and the recognition of individual rights.2 Ashworth observed that it is natural that law enforcement officers should sometimes wish to exert pressure on suspects in order to persuade them to make statements. At the same time, it is “equally natural that the law should declare certain forms of pressure to be unfair and unacceptable".3

2 This article seeks to explore the conflict between the twin objectives of criminal procedure in the context of the law on confessions in Singapore. The common law principle that an accused’s confession will be inadmissible at his trial if it was made involuntarily (“the voluntariness test”) is encapsulated in s 24 of the Evidence Act4 as well as the proviso to s 122(5) of the Criminal Procedure Code5 (“CPC”). Strident criticism has been directed at the courts’ application of the common law exclusionary rule and the way the test has been formulated. There have also been doubts expressed as to whether the test fulfils the rationales underpinning the exclusionary rule. In both the UK and Australia, these doubts have culminated in statutory departures from the voluntariness test and the introduction of the “reliability test”. This new test focuses on the likelihood that an untrue admission of guilt has been made. The question that now confronts Singapore is whether there should be reform of the CPC and Evidence Act along similar lines.

3 This article focuses principally on the question of whether the voluntariness test in Singapore ought to be replaced by the reliability test. Other possible defects in s 122(5) of the CPC and s 24 of the Evidence Act will not be addressed. It will be argued that the voluntariness test should not be completely abandoned. Importing the UK and Australian reforms into Singapore without due consideration of the context of these reforms may lead to potential difficulties. There may also be intractable problems in applying the reliability test.

4 This article will be in four components. There will first be an examination of the origin of the exclusionary rule of confessions, followed by an exploration of the possible rationales for this rule. There will then be a critical appraisal of the voluntariness test. Finally, the approaches adopted in the UK and Australia, coupled with the implications for Singapore, will be discussed.

II. Tracing the roots of the voluntariness test

5 Before 1960, the use of police statements in Singapore was severely curtailed. Sections 25 and 26 of the Straits Settlements Evidence Ordinance6 provided that any statement made by an accused person to a police officer not above a prescribed rank and whilst in police custody

was inadmissible. Singapore’s Evidence Act was derived from the Indian Evidence Act 1872,7 which was drafted by Sir James Fitzjames Stephen. Stephen explained in his “Introduction to the Indian Evidence Act” that such a strict stance was adopted to “prevent the practice of torture by the police for the purpose of extracting confessions from persons in their custody”.8 The position adopted by Stephen was noticeably different from the common law in England, as Stephen was probably of the view that the Indian police were far more corruptible than their English counterparts and more inclined to use torture to extract confessions.9 These assumptions concerning the police were imported into Singapore’s statutory regime. Sections 25 and 26 of the Straits Settlements Evidence Ordinance were reiterated in the Straits Settlements Criminal Procedure Code10 which also prohibited the use of police statements in evidence.11

6 Subject to the above restrictions on the use of police statements, the common law voluntariness test was statutorily enacted in s 24 of the Evidence Ordinance,12 which states that:

A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him.

7 In his Digest of the Law of Evidence,13 Stephen indicated that he based the above phraseology on various English cases such as Regina v Baldry14 and The Queen v Thompson.15 Cave J, in the latter case,

summarised the authorities by describing a free and voluntary statement as one which was not preceded by an inducement to make a statement held out by a person in authority. For many years, English law deemed the exclusionary rule against involuntary confessions to be a fundamental principle in criminal procedure. As Lord Sumner put it in Ibrahim v The King:16

It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.

When the UK Judges’ Rules17 were promulgated, principle (e) in the introduction reprised the voluntariness test in this form:

[I]t is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority or by oppression.

8 The latter portion of this rule stemmed from a change in the common law rule to also exclude statements obtained in “an oppressive manner”: Callis v Gunn.18 It was recognised that there were other forms of pressure placed on the accused, that were not in the nature of obvious threats, inducements or promises, which could sap the accused’s will and also result in involuntariness.

9 In 1960, this common law exclusionary rule was imported from Singapore’s Evidence Act into the CPC.19 The protection previously

accorded to accused persons was abolished.20 By virtue of the amended s 122(5) of the CPC, all statements made in the presence of a police officer above the rank of Inspector were admissible as evidence in the accused’s trial. There were two provisos to this general rule: the voluntariness test; and the need for the police, in recording the statement, to comply with the rules set out in Sched E of the CPC, which was modelled upon the UK Judges’ Rules. Subsequently, the Criminal Procedure Code (Amendment) Act 1976 (No 10 of 1976) abolished the second proviso together with Sched E, 21 thus leaving the current s 122(5) of the CPC:

Where any person is charged with an offence any statement, whether it amounts to a confession or not or is oral or in writing, made at any time, whether before or after that person is charged and whether in the course of a police investigation or not, by that person to or in the hearing of any police officer of or above the rank of sergeant shall be admissible at his trial in evidence and, if that person tenders himself as a witness, any such statement may be used in cross-examination and for the purpose of impeaching his credit:

Provided that the court shall refuse to admit such statement or allow it to be used as aforesaid if the making of the statement appears to the court to have been caused by any inducement, threat or promise having reference to the charge against such person, proceeding from a person in authority and sufficient, in the opinion of the court, to give such person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

[emphasis added]

10 It is evident, from this brief examination of the origin of s 122(5) of the CPC, that the balance between the conflicting goals of protection of the accused and crime control has been tipped heavily in favour of the latter. This shift in emphasis is not necessarily a negative development, since the position adopted by Stephen was somewhat extreme and could have constituted an unwarranted clog in the administration of criminal justice. In this regard, both Wigmore and Andrews have advocated a clear separation of functions between the criminal court, whose purpose is to determine the truth of charges against the accused, and other agencies such as police disciplinary tribunals, which deal with improprieties by law enforcement officers.22 The truth-finding process should not be unduly hampered by other extrinsic concerns. Yet, a pre-occupation with reliability of evidence in criminal procedure inevitably causes unease amongst many. The Singapore Bar Committee, in response to the proposal to amend the CPC in 1960, expressed its concern...

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