THE CONFESSION OF A CO-ACCUSED

• Citation: (1994) 6 SAcLJ 366
• Published date: 01 December 1994
• Date: 01 December 1994

The recent holding of the Court of Criminal Appeal in Chin Seow Noi v PP that a conviction may be founded entirely on the confession of a co-accused has caused quite a stir amongst the legal profession. This discussion hopes to analyse afresh the rationale for the admissibility of the confession of a co-accused and the need for supporting evidence to sustain a conviction. It argues that although a good reason exists for the admissibility of such confessions, they ought to be limited to statements made before the commencement of police investigations. It also argues that, in view of the unique dangers associated with the use of such confessions, there is much wisdom in the traditional requirement of independent supporting evidence.

I. INTRODUCTION

It must be out of the ordinary that a judicial decision on a point of criminal evidence should receive so much coverage by the press. Delivered on 27 November 1993, the judgement of the Court of Criminal Appeal in Chin Seow Noi v PP1 was the subject of a full page article in The Sunday Times more than 5 months later.2 Put simply, the Court held that the confession of an accused person may, of itself, be sufficient evidence to convict any other person implicated in the confession, if he is jointly tried with the accused person for the same offence. Quite apart from the understandable reaction that this significantly increases the risk of the conviction of an innocent person, the process by which the Court arrived at that result was unprecedented on two counts. First, the Court refused to follow a long-standing decision of the Privy Council, on appeal from India, interpreting a similar provision which was in pari materia3 Secondly, and

even more surprisingly, the Court overruled its own decision, given less than six months earlier,4 on the ground that it was made per incuriam.5 These other decisions had held that although a co-accused’s confession may be used against the accused, a conviction cannot be sustained if such a confession were the only evidence against the accused. The Court of Criminal Appeal decided that it can.

At the heart of this judicial drama is the century-old section 30 of the Evidence Act,6 and it appears that the task of interpretation of this provision is swept by cross currents from three different areas of the law of evidence; the law of hearsay in general, the law governing the admissibility of confessions and the rules relating to corroboration.7 There are really two issues which intertwine: whether such confessions ought to be admissible

at all, and this is what the law of hearsay and confessions address; and, if so, what weight it ought to be given, which is the concern of the rules concerning corroboration. The developments and trends in these different concepts, within and amongst themselves, sometimes appear to tug in different directions. The import of these forces may be misapprehended and, it is respectfully submitted, this seems be the reason why the recent decision of the Court of Criminal Appeal rejected the established jurisprudence. This discussion hopes to explore the rationale of this enigmatic section and to assess the conflicting interpretations that have been ascribed to section 30. It conies to the conclusion that there is indeed a rationale for it (but with one significant limitation) and that there was much wisdom in the traditional interpretation, which, unfortunately, the Court of Criminal Appeal, in its latest decision, did not appreciate.

II. THE SEARCH FOR A RATIONALE

Section 30 provides:8

When more persons than one are being jointly tried for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession

It is not difficult to understand why this has greatly perturbed judges and jurists from the start. It is in direct contradiction to the position at common law, one which had been settled for a very long time,9 and which remains the position in all the major common law jurisdictions:10 a confession may only be used against the confessor and not against any other person implicated in the confession. There is no reason to doubt that the section was the creation of the original draftsman of the Indian Evidence Act, Sir James Stephen.11 Yet one searches his writings in vain for a reason for this startling departure from the common law. Not a word in explanation is offered in his Introduction to the Principles of Judicial Evidence.12 Mysteriously, not only does the section disappear in his later work, A

Digest of the Law of Evidence, but an express affirmation of the common law position (not found in the Indian Evidence Act) is inserted.13 To add to the uncertainty, Stephen seemed to have deliberately chosen to depart from his usual verbal formula for admissibility, using the language of “relevance”, employing instead, for the first and only time, the phrase “may take into consideration”. Thus, generations of jurists for over a hundred years have been left to divine the meaning of the section.

A. Hearsay

The extra-curial confession of a co-accused is, of course, classic hearsay. It is an out-of-court statement tendered to prove the truth of the assertion it contains (that the accused is guilty).14 Hearsay is generally inadmissible, both under the Evidence Act and at common law, for this reason:15

…when a witness is in court, the opponent is able to cross-examine him in order to investigate his power of perception, test his memory, and appraise his veracity, thus enabling the trier of fact to determine the probative value of the testimony according to the witness’s performance in the witness-box. It is the unavailability of a hearsay declarant which constitutes the central reason for the exclusion of hearsay statements.

In the context of section 30, cross-examination of the co-accused may well be impossible as he cannot be compelled, either by the prosecution or the accused, to testify. The court is thus unable to assess the weight of the confession as against the accused. Thus the confession of the co-accused ought, prima facie, to be inadmissible as against the accused. This is, however, not the end of the inquiry as there are well-recognised exceptions to the general exclusion of hearsay. Four exceptions are of particular relevance to section 30: res gestae, co-conspirators, confessions and unavailability.

B. The Res Gestae Exception

Although the res gestae exceptions are not expressly so called in the Evidence Act, it is reasonably clear that Stephen has implicitly incorporated such a concept into the Act.16 Thus, hearsay which is “part of the same transaction” as a fact in issue is, by section 6, admissible. Conduct rendered admissible under section 8(2) because it influences or is influenced by a fact in issue includes statements only if they “accompany and explain acts other than statements”. The requirement of contemporaneity is obvious from two illustrations:

illustration 6 (a): A is accused of the murder of B by beating him. Whatever was said or done by A, B or the bystanders at the beating or so shortly after it as to form part of the same transaction is a relevant fact.

illustration 8 (j): The question is whether A was ravished. The fact that shortly after the alleged rape she made a complaint relating to the crime, the circumstances under which and the terms in which the complaint was made, are relevant.

The reason why such hearsay is made admissible is, in the words of Lord Wilberforce in a leading Privy Council decision on res gestae, that:17

…hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.

The reliability of such hearsay is “secured by the intense and unselfconscious involvement in an event”.18 The potential unreliability caused by the absence of cross-examination is thus thought to be adequately compensated for.

The crucial difference between section 30 and the res gestae exceptions is easily seen. There is nothing in section 30 which requires any kind of contemporaneity or involvement in any event. A confession made at any time will do. Indeed the recent cases where section 30 has been invoked invariably concern confessions made well after the events in question, in the police interrogation room, after prolonged and extensive questioning

under detention. Clearly, no analogy can be drawn. There is no countervailing guarantee of reliability because of contemporaneity or involvement. There is every opportunity for reflection, concoction, distortion and even suggestion.

C. The Co-Conspirator Exception

Perhaps the hearsay exception which most closely resembles section 30 is what is known as the co-conspirator exception, which is dealt with specifically in section 10 of the Evidence Act. The essential portions of it read as follows:

Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence…, anything said…by any one of such persons, in reference to the common intention after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring…

It is clear from the leading Privy Council decision on section 10, Mirza Akbar v King-Emperor, that the essence of this exception is once again the contemporaneity of co-conspirator hearsay:19

Where the evidence is admissible, it is admissible … on the principle that the thing … spoken was something done in carrying out the conspiracy…The words…spoken may be a declaration accompanying an act and indicating the quality of the...