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Criminal Procedure – Statement by accused

When investigating Penal Code offences, the Investigating or Recording police officer is only required to record a statement from witnesses and accused under section 112 CPC. When such a statement is recorded from an accused, it is not admissible against the accused. It is admissible for the accused that is it can be used by the accused to support or corroborate his defense in court when he is tried for the offence. The provision which allows that statement to be used for that purpose is section 113 (3) CPC. So bear in mind that the 112 statement made by the accused for a penal code offence is only used by the accused to his advantage. So it cannot be used by the prosecution to the disadvantage of the accused. To the contrary is when a police or Law Enforcement Officer investigates a nonpenal code offence like a drugs offence. For such an investigation the Investigating or Recording police officer will record a statement from the witness and accused under the Dangerous Drugs Act (DDA) 1952. When such a statement is recorded from an accused under section 37A DDA 1952, it is admissible against him.1If that statement is made after his arrest, it is only admissible against him if the recording officer cautions2the accused that the statement will be used against him by the prosecution to prove the offence committed by him. This caution has to be given to the accused before the statement is recorded from him. The accused has also to be told that he is only required to make a statement voluntarily3 that is the statement has to be made without any 1 Section 37A (1) “… be admissible at his trial in evidence and, if such person tenders himself as a witness, any such statement may be used in cross-examination and for the purpose of impeaching his credit …” 2 Section 37A (1) (b) ”… in the case of a statement made by such person after his arrest, unless the court is satisfied that a caution is administered to him in the following words or words to the like effect— “It is my duty to warn you that you are not obliged to say anything or to answer any question, but anything you say, whether in answer to a question or not, may be given in evidence”: 3 Section 37A (1) (a) “ … if the making of the statement appears to the Court to have been caused by any inducement, threat or promisehaving reference to the charge against such person …”

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Criminal Procedure – Statement by accused

inducement, threat or promise from a law enforcement officer. For example if he makes such a statement under the belief that he will be let free from the crime committed by him, then that statement is inadmissible against him.So bear in mind that statement under section 37A DDA 1952 made by the accused for a drugs offence may be used by the prosecution to the disadvantage of the accused that is to prove that he may be guilty of the drugs offence. Also bear in mind that even after the accused making a statement under the DDA 1952 with the necessary caution administered and at that time made willingly, once that statement is used by the prosecution against him, he may still object to the admissibility of the statement against him on the basis that it was not made voluntarily by him. If that takes place, the court will hold a trial within a trial in order to determine the admissibility of that statement against the accused.

An example of a provision pertaining to a cautioned statement by an accused: Section 72 of the Anti Money Laundering and Financing of Terrorism Act 2001 (Act 613) which reads as follows: Admissibility of statements by accused persons (1) In any trial or inquiry by a court into an offence under this Act, any statement, whether the statement amounts to a confession or not or is oral or in writing, made at any time, whether before or after the person is charged and whether in the course of an investigation or not and whether or not wholly or partly in answer to questions, by an accused person to or in the hearing of an officer of any enforcement agency, whether or not interpreted to him by any other officer of such enforcement agency or any other person, whether concerned or not in the arrest of that person, shall, notwithstanding 2

Criminal Procedure – Statement by accused

any law or rule of law to the contrary, 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.

(2) No statement made under subsection (1) shall be admissible or used as provided for in that subsection 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 the person, proceeding from a person in the enforcement agency and sufficient in the opinion of the court to give that 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. (3) Where any person is arrested or is informed that he may be prosecuted for any offence under this Act, he shall be served with a notice in writing, which shall be explained to him, to the following effect: “You have been arrested/informed that you may be prosecuted for … (the possible offence under this Act). Do you wish to say anything? If there is any fact on which you intend to rely in your defense in court, you are advised to mention it now. If you hold it back till you go to court, your evidence may be less likely to be believed and this may have an adverse effect on your case in general. If you wish to mention any fact now, and you would like it written down, this will be done.”

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(4) Notwithstanding subsection (3), a statement by any person accused of any offence under this Act made before there is time to serve a notice under that subsection shall not be rendered inadmissible in evidence merely by reason of no such notice having been served on him if such notice has been served on him as soon as is reasonably possible after the statement is made.

(5) No statement made by an accused person in answer to a written notice served on him pursuant to subsection (3) shall be construed as a statement caused by any inducement, threat or promise as is described in subsection (2), if it is otherwise voluntary.

(6) Where in any criminal proceedings against a person for an offence under this Act, evidence is given that the accused, on being informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time he could reasonably have been expected to mention when so informed, the court in determining whether the prosecution has made out a prima facie case against the accused and in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper; and the failure may, on the basis of those inferences, be treated as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material.

(7) Nothing in subsection (6) shall in any criminal proceedings –

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(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the conduct in respect of which he is charged, in so far as evidence of it would be admissible apart from that subsection; or

(b) be taken to preclude the drawing of any inference from any such silence or other reaction of the accused which could be drawn apart from that subsection.

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