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CASE REVIEW1. ANANDAGODA v THE QUEEN [1962] 1 MLJ 289 2. HASIBULLAH BIN MOHD GHAZALI v PUBLIC PROSECUTOR [1993] 3 MLJ 321 3. PUBLIC PROSECUTOR v CHANT CHOON KEONG & ORS [1989] 2 MLJ 427 4. PEMBANGUNAN MAHA MURNI SDN BHD v JURURUS LADANG SDN BHD [1986] 2 MLJ 30 5. PUBLIC PROSECUTOR v SAAD BIN...

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CASE REVIEW 1. ANANDAGODA v THE QUEEN [1962] 1 MLJ 289 2. HASIBULLAH BIN MOHD GHAZALI v PUBLIC PROSECUTOR [1993] 3 MLJ 321 3. PUBLIC PROSECUTOR v CHANT CHOON KEONG & ORS [1989] 2 MLJ 427 4. PEMBANGUNAN MAHA MURNI SDN BHD v JURURUS LADANG SDN BHD [1986] 2 MLJ 30 5. PUBLIC PROSECUTOR v SAAD BIN MAT TAKRAW & ANOR [1998] 3 MLJ 784

LAC 4163 LAW OF EVIDENCE 1

NUR FARIHAH BINTI SYAHRIZA 1172175 KLB 2 TLB 6

LL.B. (Civ. & Sha.) (Hons) Islamic Science University of Malaysia (USIM)

ISLAMIC SCIENCE UNIVERSITY OF MALAYSIA FACULTY OF SHARIAH AND LAW

ANANDAGODA v THE QUEEN [1962] 1 MLJ 289

The appellant together with two other accused, Allis Singho and A. Isiman Silva were charged and tried for two offences. First, is an offence of murder punishable under Section 296 of the Penal Code. Second, is an offence of conspiracy to murder under Section 113B read together with section 102 of abetment to such offence of the Penal Code. The deceased, Adeline Vitharana had been murdered between the 2nd day of March, 1959, and the 15th day of March, 1959, at Timbiriwewa, in the division of Anuradhapura, within the jurisdiction of this court, and at Kalutara, Kalawellawa, Colombo, Puttalam and other places, by running over her with a motor car. As for the first instance trial, the appellant tendered no evidence and called no witness, but the Prosecution had used the admissions made by the appellant to the police officer as an evidence. As such, in the appeal, the appellant submitted that such evidence adduced by the Prosecution has caused an inference prejudicial to him and has been wrongly admitted not in accordant with the ambit of sections 25, 17(1) and (2) of the Evidence Ordinance in which he was found guilty. The appellant also submitted that the jury in reaching their verdict, has been inconsistent.

The issues here are whether the admissions made by the appellant to the police officer, Inspector Dharmaratne is regarded as a confession within Sections 25, 17(1) and (2) of the Evidence Ordinance that can be tendered as an admissible and legally relevant evidence to the facts in issue against him in the court of law and whether the statements made by the appellant to the police officer, Inspector Dharmaratne were inadmissible under the provisions of Section 122(3) of the Criminal Procedure Code.

There are few answers delivered by the court in answering the issues appeared in the trial. First, there is an objective test that has to be carried out in determining whether a statement is a confession or not by looking specifically at whether the words of admission in that context expressly or substantially admit guilt. It is crucial to look onto the context of the said statement made by the accused. For example, whether a reasonable person when reading or accepting such statement understood and perceives that statement as suggesting an inference that the offence is committed by the accused. To justify this, the statement must be looked at as a whole. Second, it must be considered on its own terms without corroborating it with or referring it to any extrinsic facts.

Second, the court also held that the statements made by the appellant to the police officer, Inspector Dharmaratne, who said that the appellant made certain admissions to him while in his charge at Anuradhapura police station on March 22, 1959 was accordingly and properly admitted. Third, the court further held that there was no inconsistency in the verdict of the jury in finding both accused not guilty on the charge of conspiracy and the second accused not guilty and the appellant guilty on the charge of murder. Basically, even if the jury could be consistent with the verdict of not guilty on the charge of conspiracy, nonetheless, could still find the appellant to be guilty of murder. As for the legal authority, the court main references are Section 25 of Evidence Ordinance which provides that no confession made to a police officer shall be proved as against a person accused of any offence and Section 17 of Evidence Ordinance which states that, first, an admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made-by any of the persons and under the circumstances hereinafter mentioned. Second, a confession is an admission made at any time by a person accused of an offence stating or suggesting the inference that he committed that offence.

In The King v Kalu Banda (1912) 15 NLR 422, a police officer gave evidence at the trial that the accused had made a certain statement but that he did not say anything about having been attacked or threatened. The court held the evidence was inadmissible under section 25 as it in substance amounted to a confession. Their Lordships agreed with the decision since it would be unfair to the accused to allow evidence of a "confession" without its contents. Next, in Weerakoon v Ranhamy (1926) 27 NLR 267, the accused was charged with voluntarily causing hurt. In a statement to a police officer, the accused denied the cutting and said that the injured person got cut accidentally. The statement was held to be inadmissible. However, Their Lordships are of opinion that the above statements do not correctly interpret the meaning of the word "confession" in section 25. They consider that the correct view was taken in The King v Cooray (1926) 28 NLR 74. Further, it was held in King v Cooray (1926) 28 NLR 74, that the term 'admission' includes 'confession' in the very same classification. However, not every statement which suggests any inference as to any fact in issue or relevant fact is a confession. Only a statement made by an accused of an offence whereby he states that he committed that offence, or which suggests not just any inference but the inference that he really committed that offence. The court also

held in Seyadu v King (1951) 53 NLR 251 that the test of whether an 'admission' amounts to a 'confession' within the meaning of section 17(2) must be decided by referring only to its own intrinsic terms. Lord Haldane held in Dal Singh v King-Emperor (1917) LR 44 IA 137; 33 TLR 249 PC, that a statement by the accused in which he stated that he was at the scene of the crime was in no sense a confession. Hence, the appropriate test in deciding whether a particular statement is a confession is whether the words of admission in the context expressly or substantially admit guilt or do they taken together in the context inferentially admit guilt. As for the second issue, their Lordships declined to allow appellant's counsel to argue the point because Section 121 lays down the procedure to be followed where cognizable offences are suspected and the investigation is to be made by an officer in charge of a police station. Hence, in their Lordships' view, there is an insufficient material to prove that Inspector Dharmaratne was investigating under Chapter XII. Their Lordships stated that this issue cannot be assessed since there is an absence of the necessary evidence to show that section 122(3) was applicable.

As such, for the charge of conspiracy to murder together with abetment to such offence, all three accused including the appellant was withdrawn and were all found not guilty. However, for the charge of murder, the appellant was found guilty but the other accused not guilty.

HASIBULLAH BIN MOHD GHAZALI v PUBLIC PROSECUTOR [1993] 3 MLJ 321

On 30 December 1988 at about 5am, at house no 254, Jalan Jasa 25, Taman Jasa, Batu Caves, Selayang, in the District of Gombak, in the state of Selangor Darul Ehsan, the appellant’s house that he and another two accused, Johar bin Johan and Rahmat bin Sukairman were in was raided by a team of police officers led by Inspector Giam because they were suspected to be trafficking ganja of 19432kg in that house. Subsequently, the officers found leaves and dried twigs suspected to be ganja in one of the rooms that the appellant acknowledged was his. Plus, the appellant also claimed that all the other stuffs in that room were his too. As such, Giam claimed that he had administered the statutory caution pursuant to Section 37A of the Dangerous Drugs Act 1952 in Bahasa Malaysia which the language that can be understood by the appellant. The appellant later was convicted for the offence of Section 39B(1)(a) of the Act and was sentenced to death while the other two accused were acquitted and discharged. Hence, the appeal made by the appellant. The issues here are whether an accused person confession can be repudiated on the ground that it is involuntarily made due to an oppression and as such is inadmissible. Second, whether the rest of the circumstantial evidences would be prejudicial to the appellant due to the wrongfully admitted confession as an admissible evidence. Lastly, whether the statement made to Giam or in his hearing was inadmissible in evidence. The appellant contended, first, that no caution in the statutorily prescribed form as alleged by Giam had been administered to the appellant. Second, that apart from the replies made by the three accused persons to questions to establish their identities, no conversation of any sort had taken place between Giam and the three accused persons. Third, that in any event, if any incriminating replies had been made by the appellant to the questions put by Giam, they were not proved to have been voluntarily made.

The sentence of death was also set aside by substituting an order of acquittal and discharge due to the following reasons. First, the alleged confession made by the appellant to Giam cannot be simply accepted at its face value. Prior to the acceptance of Giam’s testimony as to the appellant’s confession, the court has to scrutinise it with a very great care by testing it against all the other circumstantial evidences and the probabilities of the case so that it would not be prejudicial to the appellant. The court also has to concede to the fact that even the appellant assisted Giam to have access to the room by handling him the key, but the key was

taken from the nail of the wall of the master bedroom to which all the three accused have open access to it. The court in the previous trial also failed to mention the significance of the alleged confession of the appellant to be tendered as an admissible evidence. In which such failure, may raise suspicion to the Prosecution’s case when it was holding to be proven beyond reasonable doubt as to the alleged confession made by the appellant. Further, this appeal has recognised several reasons as the trial judge has disregarded certain points in holding that the alleged confession of the appellant was voluntary made. First, the onus or burden in proving whether the admissibility of a confession made by the accused person on the ground of voluntariness is on the Prosecution to prove it beyond reasonable doubt. Second, in deciding whether or not a statement made by an accused person was obtained from him by fear exercised by a person in authority, the state of mind of the accused which was most material and instead confined his attention to the intention of Giam has to be taken into account and not of the police officer. Clear inference also can be made to the fact that the appellant refused to sign the paper of the recorded replies made to Giam which shows that the alleged incriminating replies made by the appellant might have made under threat, in which the trial judge has failed to recognise. The methods used by Giam in obtaining such alleged replies that is turned into an evidence of confession has to be observed to which how the statement would result. As such, the improper admission of the alleged confession was gravely prejudicial to the appellant which will cause a miscarriage of justice. In R v Thompson, the judge in accepting any testimony given to him during the trial in determining the admissibility of the appellant's replies in terms of its voluntariness and truth have to be made with great care and caution. However, this case failed to address the significance of that evidence when it is accepted. The cases of Sarwan Singh v State of Punjab and PP v Thum Soo Chye further discussed on the voluntariness of a confession, whereby, both decisions are arrived at without applying the true and relevant legal tests. In which, this is flawed in the view of this appeal based on several reasons based on the fundamental principles of criminal law. In which, in Ibrahim v R and Wong Kam-Ming v R, first, in deciding the admissibility of a confession made by an accused person, the onus is not on the accused to show involuntariness but on the prosecution to prove it beyond any reasonable doubt that the confession was voluntary. Secondly, based on R v Richards and R v Northam, in deciding whether a statement made by an accused person was obtained from him either by fear or prejudice exercised by a person in authority, the state of mind of the accused

that has to be prominently considered. It is to show the appellant was put in that fear in order for that statement to result. Next, in Dato Mokhtar bin Hashim v PP , the judge ought to have excluded the appellant's alleged confession when it is made under any oppressive circumstances in satisfying the 'voluntariness' test. Even if it is true that the provisions of Section 37A(1) of the Act which repeat Section 24 of the Evidence Act 1950, do not provide for this as a ground to exclude a confession by an accused person, but this case has apparently incorporated the common law. Whereby, the court found that the trial judge was wrong in failing to exclude the statement made by the accused that was made out of prolonged periods of questioning ranging into the small hours of the morning which appeared to be suggestive of oppression. In R v Priestley, the court applied the definition of oppression as 'something which tends to sap and has sapped that free will which must exist before a confession is voluntary'. This was subsequently reiterated in R v Prager. In R v Fulling, Lord Lane CJ held that oppression must be given its ordinary dictionary meaning and applied the definition of that word as it appears in the Oxford Dictionary. Second, having decided that the alleged confession by the appellant was wrongly admitted, the court have to consider the further question of whether, on a fair consideration of the rest of the evidence, which was purely circumstantial, the improper admission of the alleged confession, had turned the scale against the appellant. This case was satisfied that the improper admission of the alleged confession was gravely prejudicial to the appellant, did turn the scale against him and as such, will cause a miscarriage of justice. might well have occurred. The other point in this case is regarding the admissibility of the chemist's report submitted by the parties under Section 399 of the Criminal Procedure Code which is supposed to be examined during cross examination. However, the chemist had migrated to Australia making the chemist's report to be inadmissible in evidence since the maker was out of jurisdiction and cannot be called to the court. As such, the Prosecution replied that this report was still admissible under Section 32(b) of the Evidence Act 1950, which allows the exception to the hearsay evidence. However, the defence succeed by contending that there was insufficient evidence adduced by the prosecution to establish the chemist’s report within the exception to the hearsay rule embodied in Section 32(b) of the Evidence Act 1950. As such, the appeal brought by the appellant was allowed and the conviction was quashed.

PUBLIC PROSECUTOR v CHANT CHOON KEONG & ORS [1989] 2 MLJ 427

The three accused were charged for with an offence under Section 3(1) Kidnapping Act 1961 read together with Section 34 of the Penal Code for jointly abducting and kidnapping a sixyear-old girl, Pheh Sau Yee for ransom on 13th December 1984 at about 9.20 pm at No 16 Jalan Awan, 18 Kampong Baru Ulu Klang in the state of Selangor in furtherance of their common intention. The Prosecution case raised a case sought to tender a cautioned statement made by the third accused. However, the Defence objected to the statement being used as an admissible evidence in the trial. Hence, the court ordered a trial within a trial to determine 3 instant issues to determine whether the statement was admissible as an evidence to be tendered by the parties in the court. The issues submitted are, first, whether a proper caution had been given to the accused. Second, whether two station diaries and one lock-up diary could be tendered as evidence and third, whether the cautioned statement was obtained under oppressive circumstances. First, an important word as 'inducement' which is obtainable in Section 113 of the Criminal Procedure Code has to be explained and made understood to the third accused when administering the caution pursuant to that section. It will not be properly explained to and be understood by the third accused if the recording officer himself did not give the correct word for 'inducement' in Hokkien, be it common Hokkien or otherwise. In this case, the recording officer gave a word in Hokkien for 'inducement' which was different from that given by the certified court interpreter. Thus, a proper caution had not been administered and had not been properly and fully explained so that the third accused did understand it. Second, the lock-up register is different from the lock-up diary. Usually, these diaries are used for refreshing of memory rather than evidence of fact stated therein. Thus, station diaries and lock-up diaries are not admissible since they are not public documents and are only admissible if the makers of those entries are called to verify it. Third, there are several relevant facts to be looked at in considering what are 'oppressive circumstances' which negating voluntariness.

Having

considered all the evidence in the trial within a trial, the court ruled that the third accused was put under tremendous physical and mental pressure in order to compel him to make a statement that is tendered as evidence. On a side note, in dealing with the evidence of visual identification, the court has to bear special need for caution before convicting the accused in

reliance on the correctness of the identification. This is because, the conflicting pieces of evidence given by two important prosecution witnesses, the investigating officer and the officer who conducted the identification parade, were specific weaknesses in the identification evidence for the prosecution. Moreover, the identification parade was not properly conducted. Next, PW was only six years of age at the time of the incident and seven years of age when she gave evidence at the preliminary enquiry. Later, she is ten years of age when she gave evidence in this trial without corroboration. Whatever she said in evidence in this trial, it must be scrutinized with special care as children have the tendency to invent and distort the evidence. Last but not lease, at the close of the Prosecution's case, what has to be decided remains a question of law only. As such, the court has only to consider whether at this stage there is some evidence, as adduced and unrebutted, which if accepted as accurate, would establish each essential element of the offence charged. In the present case, the court found no evidence at all to link the first accused and the third accused with the abduction of PW6. The court accordingly acquitted them of the said offence. Based on Datuk Mokhtar bin Hashim & Anor v PP [1983] 2 MLJ 232 for the statement to be admissible, the prosecution must prove beyond reasonable doubt that the statement was made voluntarily without any inducement, threat or promise. Next, in Tan Too Kia v PP [1980] 2 MLJ 187 concerning the issue of voluntariness concerning the statement made by the accused that is tendered as an evidence, it was up to the prosecution to prove beyond reasonable doubt that it was voluntary. Prior to the issue of whether the statement made was voluntary or not, it is relevant to first consider the issues of whether a proper caution had been...