To What Extent a Confession Made by an Accused Person is Relevant?
Posted on Monday, December 10, 2012 by Nurul Suffina Ahmad
The general rule is, a confession is
relevant unless it is excluded by some other provisions of the Evidence Act
1950 (hereinafter referred to as ‘the Act’) or some other law. Section 24
clearly speaks about this matter. A confession is irrelevant if it does not satisfy the
requirements enumerated in that section. Section 24 reads as follows:
“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 r 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”
Sarkaria J in Veera Ibrahim v Maharashtra
[1976] 3 SCR 672, 676 held
that, to attract the prohibition enacted in section 24, Evidence Act, these
facts must be established:
- That
the statement in question is a confession
- That
such confession has been made by an accused person
- That
it has been made to a person in authority
- That the confession has been obtained by
reason of any inducement, threat or promise proceeding from a
person in authority
- Such inducement, threat or promise, must
have reference to the charge against the accused person
- The inducement, threat or promise must in
the opinion of the court be sufficient 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.
A confession is defined in section 17(2)
of the Act. It is a statement, taken as a
whole without reference to extrinsic facts, which states or suggests the inference
that the maker committed the offence. It must be observed that, section 24
applies only if the statement amounts to a confession, and where it does not
amount to a confession, it is admissible as an admission. For the second
requirement, although at the time a person makes a confession he had not been
accused, it is sufficient if he becomes an ‘accused person’ based on
confession, and this was supported with the judgment by Callow J in Selvadurai v PP [1948-1949] MLJ
Supp 43, 44. The section
however has no application where the confession though made by a person who was
at the time he made it an accused person, is used in other proceedings in which
the person who made it is not an accused person but merely a witness.
Next, in order to attract the prohibitions
contained in the section, the confession must have been made to a person in
authority and such confession obtained must coupled with any inducement, threat or
promise proceedings from them. As a general rule, a person in authority is
someone engaged in the arrest, detention, examination or prosecution of the
accused. Examination here may refers to interrogation by police officer or
maybe others. It is essential to show that the inducement, threat or promise
was held out by a person in authority. Otherwise, the provisions of the section
will have no application. If a confession made without any inducement by a
person in authority, such confession will be admissible. [per Ong Hock Sim J (as he then
was) in Abu Bakar v Nazmeer v PP [1970] 2 MLJ 216, 218 (HC)]. In
addition, an inducement made by one who is not in authority but made in the
presence of persons in authority who do not dissent from it may be deemed to
have been made by a person in authority.
The last but not least, the test for
determining admissibility of a confession is first, whether it was made
as a consequence of any
inducement, threat or promises, and second, whether in making it the accused
did so in circumstances which, in the opinion of the court, would have led him
reasonably to suppose that he would gain some advantage for himself or would
avoid some evil of temporal nature to himself. Both are questions of fact are
matters of judicial evaluation. The
word inducement has not been defined in the Act. It would be determined by the
circumstances of each case. In Mohamed
Yusof v PP [1983] 2 MLJ 167 (HC) Syed
Agil Barakbah (as he then was) said that threat or inducement need not only be
made by direct means. At page 169 his Lordship said:
“It is sufficient by an indirect approach
for example from the mannerism of speech or conduct of the person in authority
and the court is satisfied from the facts and surrounding circumstances that
its effect on the mind of the accused is that he has to make a statement
whether he likes it or not.”
For example, in PP v Liik Ching Kwong [1988] 1
MLJ 398 (HC), Chong Siew
Fai J (as he then was) said that the words ‘you must tell the truth or else you
will be charged’ contained the element of threat. Further example can be
gleaned from Lau Kee Hoo v
PP [1984] 1 MLJ 110 (FC), where
in this case, there was evidence to show that the accused was induced to make a
statement by being told that if he signed the statements he would be treated
leniently and would not be tried in court. It was on this understanding that
the accused signed the statement. Zakaria Yatim J (as he then was) ruled that
the statement was not admissible. In conclusion, it must be noted that the task
of the court in determining voluntariness is to apply the spirit and intendment
of the confession rule, which is a question fact in each case without being
anchored to any particular words.
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