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CONFESSION & ADMISSION
Definition : s.17
(1) 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. - civil/criminal
(2) 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. - Criminal
“Yes I had an affair with the deceased” admission “Yes I saw the the deceased on the night in question” admission “ I am not disputing the existence of the contract , only that there is no breach.” admission “ I accept that I was driving the car at the time of the incident.” confession “ I stabbed X and then th en buried the knife in my garden” confession
Anandagoda v R *Note : not every admission is a confession but every confession is an admission.
Distinction between admission & confession: CONFESSION
statement made by an accused person which is sought to be proved against him in a criminal proceeding to establish the commission of an offence by him if deliberately and voluntarily made may be accepted as conclusive in itself of the matters confessed always goes against the person making it
usually relates to a civil transaction and comprises all statements amounting to admissions as defined in section 18
The confession of one of two or more accused jointly tried for the same offence can be taken into consideration against the co-accused (Section 30).
not conclusive proof of the matters admitted, but may operate as an estoppel. may be used on behalf of the person making it under the Exceptions provided in section 21. an admission by one of several defendants in a suit is no evidence against another defendant.
Test is objective based on a reasonable man reading the statement. Not every statement which suggest any inference as to the fact in issue is a confession. If a person accused of an offence states expressly that he committed the offence of which he is charged, clearly it is a confession.
ADMISSION Can an admission /confession be tendered in evidence? An admission is substantive evidence of the fact admitted and is admissible as an exception to the hearsay rule.
PP v DSAI -
Held : Admissions are an exception to the hearsay rule and can be proved as against the person who makes it.
*Logic : Not self serving must be true
*By virtue of s.21 both confessions and admissions can be proved against the maker.GR cannot be used on behalf of the maker.
*s.23 : letters without prejudice
Admission by whom: s.18(1) , (2) , (3): 1.party to proceedings 2.agents 3.Parties acting in a representative character 4.Person with proprietary/pecuniary interest 5.Persons from whom parties have derived their interest. Note : PP V DSAI Accused is a party to a proceeding.
Admission in civil cases: •
Note : s.17(1) + s.18 + s.21
17, 18 and 21 of the Evidence Ordinance, 1950.
*Note : s.58 : don’t have to prove the things admitted. Admission is not automatically be conclusive. The ct has the discretion to ask you to prove it. *Note : not treated as conclusive
Exception: s.23 communications:
GR : In civil cases an admission can be proved against maker. ( s.21 + s.58 ) Exception :s.23 in civil cases no admission is relevant if made on the express condition that it is not to be given in evidence or under circumstances where this condition can be implied by the court. Where s.23 applies the admission cannot be used in court.
s.23 will generally apply to without prejudice communications
Admissions can be proved against the maker as an exception to hearsay.
Ma Clyde v Wong Ah Mei -
He held that the onus to explain why the collision took place was with the appellant and as the appellant had chosen not to give evidence, he gave judgment against her. A report made by the appellant to the police about the accident was admitted in evidence and on appeal it was argued inter alia that the evidence had been wrongly admitted. The report of the appellant in this case was a first information report and was admissible under sections
A-B Chew Investments v Lim Tjoen Kong Summary Judgment-Striking out of affidavits on ground that they referred to 'without prejudice' negotiations - Whether defendant can claim privilege attached to 'without prejudice' negotiations - ss 17 & 23 Evidence Act
Malayan Banking v Foo See Moi
a. parties must be in negotiations over a dispute
Mixed statement (indicated that A had committed the offence and also set up a defence)
b. there must be communications between them with terms to settle the dispute.
Boss Ramasamy v Penang Port Although the correspondence was marked “W/P” it was not protected under s.23 as it was merely an opening shot and not a letter in the course of negotiations.
Rush & Tompkins v GLC Can be implied from facts even if W/P not expressly stated.
“ I carried the ammunition , I had no choice they had threatened to kill my family ”
*mixed statement can be accepted as a confession with conditions, need to admit everything from the statement (whole) as truth of content. *the inculpatory that will be given mo re weight than the exculpatory part. Note : purely exculpatory statements are not admissible as a general rule. Note: s.17(1) + (2) : a confession •
a. oral/writing (How)
b. can be made anytime (When)
c. by A (Who)
Definition: s. 17(2) Anandagoda v R Its an exception to hearsay rule and can used against the maker ( DSAI , S.21).
Confessions can be made: (1) before /after arrest (2) before /after started
Logic : statement against interest it must be true. Note : confession must be not be purely exculpatory
Can confessions made to third party (other than PO/customs officer etc) be admitted? -
“ I am innocent, I know nothing about the drugs”
Refer s. 113 CPC The confession made to other than the police investigation states can be admitted (not bind under 113 CPC)
Exculpatory (not a confession) PP v Mohd Khayry Ismail •
“ I planted the explosives” Purely inculpatory (confession)
A was charged with the murder of a CC’s owner.
A owed the owner a fortune and had threaten to kill him as the owner refused to lend him more credits. Killed the owner with a homemade explosive and ran. Confessed to his 2 friends 2 friends called to testify and the confessions are admitted and accepted. S. 113 was not applied as it’s made before the arrest.
PP v Othman A. Aziz -
Murder charge. Murdered his gf cos she refused to marry him. Regretting it later Confessed to the owner of the restaurant where he works. Was advised to lodge a police report and did. Confession was made bef the arrest therefore, 113 not affected.
Exclusion of confession: s.21 allows for the admission of a confession , unless it is excluded by other provisions of law
EA s. 24, 25, 26
Killed his family & wife Theres a suicide note which contains a confession of his killing Tried to kill himself
Admissibility of confession: A confession under s.17(2) is admissible under s.21 as evidence of the truth of contents as against the maker of the confession. Note : s.17(2) & s.21 cannot be read in isolation but must be read together with other provisions of EA as well as other legal provisions (CPC , DDA etc)
R v Wong Ah Kin “The Evidence Ordinance defines an admission and a confession, a confession being included under the general definition of admissions. And then under section 21 it makes admissions relevant. The effect of that is that all confessions are relevant and can be proved unless they are excluded by some other section of the Ordinance or by some other rule of law not perhaps contained in the Ordinance”.
In short confessions are only admissible if: •
Junaidi Bambang v PP
a. it is voluntary( S.24) b. proper procedures are followed(S.25/26 & CPC/DDA etc)
s. 24 Confession caused by inducement, threat or promise when irrelevant in criminal proceeding. 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.
Elements: a. confession by an A
TIP 1.“ You had better tell the truth” - PP V NAIKAN
NOT TIP 1. “be sure to tell the truth” –R v COURT
2.“You had better tell the truth , it may be better for you” -R v FENNELL
2.“You better tell the truth”-PP v RAMASAMY
3.PP v Liik Ching Kwong“You must tell the truth or else you will be charged”
3.“ Don’t run your soul into sin, tell the truth”-R v SLEEMAN
b. is irrelevant if caused by “TIP” c. having reference to the charge d. proceeding from a person in authority e. To give A reasonable grounds to suppose that by making the confession he would gain an advantage or avoid an evil ( temporal) Effect: if s.24 is breached the confession is inadmissible on grounds of invol untariness. Note : if D alleges that confession is involuntary a trial within a trial (voir dire) must be held to determine the voluntariness of the confession. Burden on P to prove BRD it is voluntary.
Dato Mokhtar Hashim v PP
Q OF FACT Not possible to provide an exhaustive list. The TIPO must have an impact on the mind of the A. If no impact / causation. S.24 will not apply the confession is voluntary and admissible.
A confession is involuntary and inadmissible: DPP v Ping Lin
a. TIP (Threat, inducement , promise) b. Oppression -
(TIPO) Oppression was judicially implied in to s.24 and now widely accepted. TIPO is a Q of fact
TIP (Threat, inducement , promise) -
Can be direct/indirect Express/ implied Words used is not the only factor Mannerism Test: what impact it had on the mind of the A. If it causes the A to make the statement because he reasonably believed he will gain an advantage/ avoid an evil involuntary
TIP (Objective test: Q of fact)
Impact on A (Subjective)
which it was held that it is not necessary before a statement is held to be inadmissible because it is not shown to have been voluntary, that it should be thought or held that it was impropriety in the conduct of the person to whom it is made and that what has to be considered is whether a statement is shown to have been voluntary rather than one brought about in one of the ways referred to.
Deokinanan v R a person in authority is a person who has control over the accused in the proceeding.
R v Priestley -
Something which saps the free will
R v Fulling -
Exercise of burdensome, manner Unjust/cruel inferior Imposition of unjust burden
authority in a harsh or wrongful treatment
To relate with the oppressive circumstances, if the accused made the statement when he is interrogate by the police and after 5 hours interrogation without any rest and refreshment, he made the statement to escape from the situation because he believes that if he stays more in the interrogation, he would suffer from it, therefore the voluntarily statement only permanent for a period of time which is only temporal in nature.
a unreasonable or
PP v Chan Choon Keong
No dispute that a PO will fall W/I the def. If there is TIP from a person not in authority s.24 will not apply.
Factors to be considered: o
o o o
Characteristics of A (age, sex, health & personality) Period of time that he was questioned Length of custody Rest / refreshments
s. 25: (1) Subject to any express provision contained in any written law, no confession made to a police officer who is below the rank of Inspector by a person accused of any offence shall be proved as against that person.
Dato Mokthar Hashim v PP no prayer time , long and odd hours of interrogation. PP v CHAN CHOON KEONG questioned whole night with his hands handcuffed behind his back ,sleep on cement floor w/o blanket , forced to eat chilli padi etc
Element: 1. Subject to any express provision in any written law (suggests that other express provisions will prevail over s.25) 2.GR : No confession made to a PO below the rank of Inspector can be proven against him.
PP v Kamde Raspani Breach of lock up rules can amount to oppression
*Can also be psychological ( handcuff, female interrogated by a male officer) etc.
Pakala Narayana Swami v King Emperor Applies to confessions made to PO not in the course of investigation
s. 26: 1) Subject to any express provision contained in any written law, no confession made by any person whilst he is in the custody of a police officer, unless it is made in the immediate presence of a Sessions Court Judge or Magistrate, shall be proved as against that person.
Applies to confessions made while in police custody . To be admissible it must be made in the presence of a Magistrate /Sessions Court judge. In the custody of PO :state of being guarded and watched , to prevent escape. ( Sambu v R )
s. 113 CPC: Admission of statements in evidence.
The admissibility of confessions under Evidence Act must now be read subject to s.113 CPC.
With the new amendment : A Confession/ any statement made by A can no longer be admitted as against the ac cused if made to PO in the course of investigation.
Exceptions : 1. 2. 3. 4.
statements made in id parade s.27 s.32(1)a, i &j separate charge relating to the making of the statement
NOTE: No more confessions for offences under Penal Code which are subject to procedures under CPC if made to a PO in the course of investigations. Note :other Acts have not been amended yet.
S.37A DDA 1952,S.45 ANTI CORRUPTION ACT 1997& S.16 KIDNAPPING ACT1961 Confessions made in the course of investigations are still technically admissible for these acts if the procedure is satisfied and it is voluntary. Note : Evidence Act still not amended. *refer S. 37B DDA: Admission of statement in evidence
S. 37A DDA: 1.Charged with any offence under DDA 2.Any statement (confessions included) 3.Oral/ In writing 4. At any time (in the course of PI or Not) 5.Made to /in the hearing of any PO of /above the rank of Insp or senior customs officer
6.Shall not withstanding anything contained in any written law 7. Be admissible in evidence .
Proviso : It shall not be admissible if : a . Caused by TIP (O) ( same as s.24 ) b . If made after arrest – no caution was administered “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”
Provided that a statement made by any person before there is time to caution him shall not be rendered inadmissible in evi dence merely by reason of no such caution having been given if it has been given as soon as possible.
SUMMARY: 1. Confessions made to PO in the course of PI for Penal code offences – OUT ( new s.113 CPC) 2. Confessions made non police officer – can still be admitted. 3. Confessions can still be admitted under other statutory provisions which have not been amended : S.37A DDA1952,S.45 ANTI CORRUPTION ACT 1997& S.16 KIDNAPPING ACT1961 4. AGC policy to longer tender confessions made to PO
S. 27: (1) When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of that information, whether the
information amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved. Section 27 allows information statement made by an A to be tendered in evidence, where it results in a discovery of facts.
Purpose : To assist the P ,as it allows an information statement from the A to be admitted even if made involuntarily. Why : wording “ information” as opposed to “confession” suggest that s.27 is independent of s.24,25 &26. Logic : the discovery of fact establishes the truth of the information (therefore it is reliable
What benefit ? Knowledge of the crime / circumstances of the crime inference
That you committed the crime
Lends credence and Prosecution’s case.
Elements: a. information b. received from Accused in the custody of PO c. fact must be discovered in consequence of the information d. fact must be relevant to the crime.
Note : it is an exception to s.24 ( statement need not be voluntary) Note: new s.113 CPC does not apply to s.27.
Impact : s.27 statement can be admitted in evidence against the A provided elements are satisfied. *information= tell them the things that they didn’t know yet
Wai Chan Leong v PP -
Element of imparting knowledge
Chong Soon Koy v PP “It is submitted that the information supplied by the accused was not admissible, since he was arrested under s. 73(1) ISA and at the time he gave the statement he was not "a person accused of any offence" within s. 27. There is no merit in this argument, since these words mean "a person accused at the time or subsequently of any offence”.
Sambu v R
Can info be given w/o words? Whether by words/not is the Q of facts
Jeyamuraly v PP Acts such as nodding/pointing in response to a Q can amount to info under S. 27
In the custody of PO :state of being guarded and watched , to prevent escape.
Fact must be discovered in consequence of the information There must be evidence to show that a fact was discovered in consequence of the information received.
Bala Anak Matik v PP Wai Chan Leong v PP Simply nodding not an info if w/o wor ds PP v Norzilan Yaacob -
(The fact is the consequence and the information the cause of its discovery) Fact : the object discovered, the place the object the is found and the knowledge of the A as to this.
Discovery Wong Nam Loi v PP -
Pointed to refrigerator stated that if there was anything illegal it was in the fridge. Considered as info
Received from Accused in custody: The information must have been received from a person accused of an offence. In other words, the accused himself gave the information
The thing discovered must have the characteristic of being hidden: in a place of concealment even if it may be accessible to others and could be discovered with difficulty w/o the information: PP v Mohd Farid *If police have prior knowledge of the thing discovered /fact the section will not apply. PP v Liew Sam Seong Must be discovery and not recovery
*recovery cannot be admitted, only discovery.
Voluntariness is not a prerequisite to admit. PP v Hashim Hanafi -
Where the police knows the object is hidden in a particular location but not the exact place the information can fall within s.27. If A makes more than 1 statement only the first will be admissible as a GR
Cf: Md Desa
s.27 is subject to s.24.
Goi Ching Ang v. PP
s.27 is not subject to s.24 , voluntariness is not a prerequisite but court may at its discretion exclude on grounds of unfairness / prejudice.
Information must relate to discovery Under s.27 only those parts of the statement which relates to the discovery admissible.
Francis Antonysamy v. PP Krishna Rao Gurumurthi v. PP
S. 27 cannot be used as a back door to admit inadmissible confessions. Those parts of the statement which do not relate to the discovery must be severed.
Pulukuri Kottaya v Emperor
*It is desirable that the information be recorded in writing contemporaneous to the making of the statement. Can also be recorded after discovery. Should use actual words of the accused. Sum Kum Seng V PP
“I stabbed S with a spear. I hid the spear in a yard in my village . I will show you the place.” PP V Hashim Hanafi Hashim v PP
not mandatory for actual words to be used although desirable.
“ I will show you where the iron pipe used in the murder was thrown away.”
s. 30: Krishna Rao Gurumurthi “ saya setuju tunjukkan barang kemas yang kami ambil dari kedai emas itu.Saya ada sembunikan dlm satu beg di tempat buang grenade di Ulu Kinta.”
Lim Ah Oh V R Wai Chan Leong V PP
*s.27 is an exception to s.24 & s.113
Confession for an A can be used against a CoA.
ELEMENTS: 1. A & CO –A must be tried jointly for the same offence. 2. The confession itself must be proved (voluntariness & other procedural requirements) 3. Must affect both A & CO – A 4.Confession of a CO –A by itself w/o other independent evidence cannot be sufficient to sustain a conviction. (Bhuboni Sahu V The King)