In our Malaysia position, although there is provision says that confession is not admissible if the confession is induced by promise, inducement or threats, there is nothing talks about this oppression. Hence, we ought to refer the position under common law. Firstly, in the case of R v. Priestley, oppression is defined as "something which tends to sap and has sapped that free will which must exist before a confession is voluntary”. In the case of R v. Fulling, a Court of Appeal decision, 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 which says this: Exercise of authority or power in a burdensome, harsh or wrongful manner, unjust or cruel treatment of subjects, inferiors, etc.; the imposition of unreasonable or unjust burdens.
1. Dato Mokthar bin Hashim v Public Prosecutor
This was an appeal by the appellants against their conviction and death sentence by the High Court, Kuala Lumpur on 5 March 1983 ([1983] CLJ (Rep) 721) on the charge of murder of the former Speaker of the Negeri Sembilan State Legislative Assembly, Dato Mohd.Taha bin Talib on 14 April 1982 at or about 1.30 a.m. at Gemencheh in Negeri Sembilan, an offence punishable under section 302 of the Penal Code read with section 34 of the same Code. The deceased was found dead from bullet wounds outside his house in Gemencheh in the early morning on 14 April 1982.
The case was classified as a security case under the Essential (Security Cases) Regulations, 1975 (“the Regulations”) by virtue of a certificate issued by the Attorney General under the provisions of reg. 2(2) thereof. Counsel for the 1st appellant took as his first point, the failure of the learned trial Judge to consider the preliminary objection he had raised at the inception of the trial and renewed subsequently that this was not a security case but one of law and order, that in the circumstances, the Attorney General could not and should not have issued his certificate under reg. 2(2) of the Regulations, that the trial was accordingly a nullity and that it should be remitted to the Magistrate’s Court for a preliminary enquiry prior to any committal for a trial by jury in the High Court under the provisions of the Criminal Procedure Code.
A major frontal attack was made by Counsel for both the appellants against the learned trial Judge’s finding that a statement (P101) made by the 2nd appellant which amounted to a confession was voluntary. He made the statement in question on 23 June 1982 after his arrest on 29 May 1982 under section 112 of the Criminal Procedure Code to DSP Mohd. Bashir bin Ali (PW8) which implicated not only himself but also his co-accused. The statement purports to narrate the planning and preparation of the murder of the deceased which gave various dates of meetings held between the participators and also gave a somewhat vivid account of the actual murder, in that, the 1st appellant had fired the fatal shots. The voluntariness of the statements was put in issue as the 2nd appellant had alleged that he was induced to give the statement and after a voir dire the learned trial Judge had held the statement to be voluntary and therefore admissible, and accordingly admitted it in evidence and put in as P101. In this connection, the Public Prosecutor had applied that the decision of the Federal Court in Johnson Tan Han Seng v. Public Prosecutor be reconsidered in reference to reg. 21 of the Regulations which states to the effect that the prosecution must prove that a statement made by an accused person was voluntary if they wanted to rely on it and submitted that that regulation on its wording precludes any such burden on the prosecution. The Gombak Police Station station diaries (D105 A-E) and lock-up register (D104) for the period from 29 May 1982 to 10 July 1982 were put in by the defence through Insp. Aziz bin Abdullah (DW4) in the voir dire and heavily relied on, and it was the entries in the station diaries that appeared to play a prominent part in the attack by the defence on P101. The learned trial Judge had dismissed the station diaries as being unreliable on the ground that the recording of the entries appeared to him to have been done in a slipshod manner and referred to two examples of what he considered to be erroneous entries.
The admissibility of the station diaries was made an issue and the Public Prosecutor contended that they were not public documents in that they were not available for public inspection and the entries therein were not made for public purposes but only to regulate the internal business of the police force. He contended that the station diaries were kept by virtue of administrative orders called Standing Orders made by the Inspector General of Police under section 97 of the Police Act 1967. Counsel for the 2nd appellant, however, relied on section 35 of the Evidence Act 1950 which provides (so far as relevant for present purposes) that an entry in an official book or register stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty was itself a relevant fact.
The case against the 1st appellant was circumstantial, and in relation to the death of the deceased on the evidence of Sudin bin Shariff (PW22) and Datin Norsiah bte Osman (PW23), the deceased’s father-in-law and widow respectively, as to the deceased being lured out of his house and hearing gunshots at the relevant time, the testimony of the pathologist of identification of the deceased’s body, that of Liah bte Nahu (PW25) of seeing a white car with two figures alighting and then hearing two shots and the car speeding off in the direction of the main road, the discovery of the deceased’s body and the finding of the two bullet casings (P4 and P5) by Bahadon bin Baharom the OCPD Tampin (PW17), rested primarily on the evidence of Atun bin Ali (PW18) that he saw the 1st appellant in the company of four others in Gan Kee Estate some 3½ miles away from the scene of the crime about 1½ hours.
The case was classified as a security case under the Essential (Security Cases) Regulations, 1975 (“the Regulations”) by virtue of a certificate issued by the Attorney General under the provisions of reg. 2(2) thereof. Counsel for the 1st appellant took as his first point, the failure of the learned trial Judge to consider the preliminary objection he had raised at the inception of the trial and renewed subsequently that this was not a security case but one of law and order, that in the circumstances, the Attorney General could not and should not have issued his certificate under reg. 2(2) of the Regulations, that the trial was accordingly a nullity and that it should be remitted to the Magistrate’s Court for a preliminary enquiry prior to any committal for a trial by jury in the High Court under the provisions of the Criminal Procedure Code.
A major frontal attack was made by Counsel for both the appellants against the learned trial Judge’s finding that a statement (P101) made by the 2nd appellant which amounted to a confession was voluntary. He made the statement in question on 23 June 1982 after his arrest on 29 May 1982 under section 112 of the Criminal Procedure Code to DSP Mohd. Bashir bin Ali (PW8) which implicated not only himself but also his co-accused. The statement purports to narrate the planning and preparation of the murder of the deceased which gave various dates of meetings held between the participators and also gave a somewhat vivid account of the actual murder, in that, the 1st appellant had fired the fatal shots. The voluntariness of the statements was put in issue as the 2nd appellant had alleged that he was induced to give the statement and after a voir dire the learned trial Judge had held the statement to be voluntary and therefore admissible, and accordingly admitted it in evidence and put in as P101. In this connection, the Public Prosecutor had applied that the decision of the Federal Court in Johnson Tan Han Seng v. Public Prosecutor be reconsidered in reference to reg. 21 of the Regulations which states to the effect that the prosecution must prove that a statement made by an accused person was voluntary if they wanted to rely on it and submitted that that regulation on its wording precludes any such burden on the prosecution. The Gombak Police Station station diaries (D105 A-E) and lock-up register (D104) for the period from 29 May 1982 to 10 July 1982 were put in by the defence through Insp. Aziz bin Abdullah (DW4) in the voir dire and heavily relied on, and it was the entries in the station diaries that appeared to play a prominent part in the attack by the defence on P101. The learned trial Judge had dismissed the station diaries as being unreliable on the ground that the recording of the entries appeared to him to have been done in a slipshod manner and referred to two examples of what he considered to be erroneous entries.
The admissibility of the station diaries was made an issue and the Public Prosecutor contended that they were not public documents in that they were not available for public inspection and the entries therein were not made for public purposes but only to regulate the internal business of the police force. He contended that the station diaries were kept by virtue of administrative orders called Standing Orders made by the Inspector General of Police under section 97 of the Police Act 1967. Counsel for the 2nd appellant, however, relied on section 35 of the Evidence Act 1950 which provides (so far as relevant for present purposes) that an entry in an official book or register stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty was itself a relevant fact.
The case against the 1st appellant was circumstantial, and in relation to the death of the deceased on the evidence of Sudin bin Shariff (PW22) and Datin Norsiah bte Osman (PW23), the deceased’s father-in-law and widow respectively, as to the deceased being lured out of his house and hearing gunshots at the relevant time, the testimony of the pathologist of identification of the deceased’s body, that of Liah bte Nahu (PW25) of seeing a white car with two figures alighting and then hearing two shots and the car speeding off in the direction of the main road, the discovery of the deceased’s body and the finding of the two bullet casings (P4 and P5) by Bahadon bin Baharom the OCPD Tampin (PW17), rested primarily on the evidence of Atun bin Ali (PW18) that he saw the 1st appellant in the company of four others in Gan Kee Estate some 3½ miles away from the scene of the crime about 1½ hours.
In this case, the court held that the trial Judge was wrong in failing to exclude the statement made by the accused because it was the result of prolonged periods of questioning ranging into the small hours of the morning which “appeared to be suggestive of oppression.” In so holding, the Court applied the definition of oppression propounded by Sach J.
2.Public Prosecutor v. Kamde Raspani
The accused was tried for an amended charge of cultivating cannabis on 24 September 1980 at Kampung Parit Satu, Sanglang, Ayer Baloi, Pontian, Johor contrary to section 6B(1) (a) of the Dangerous Drugs Act 1952. The prosecution sought to tender 2 caution statements purportedly made by the accused. The defendant objected to the admissibility of the statements and a trial within a trial was held. Evidence was given that the statements were recorded in Bahasa Malaysia and under cross examination the prosecution’s witness admitted that the words were the words of a police officer and not the words of the accused. It was also known that although the statements were read back to the accused they were not interpreted to him. Under further cross examination it was shown that the accused was interrogated for 17½ hours between 11 January and 12 January 1982 and was carried out after 6.30 pm in breach of r. 20 of the Lock up Rules 1953. The accused gave evidence that he was assaulted by 2 policemen and that he fabricated the statement in order to avoid further beatings. The Court held that the way the accused was interrogated is indeed unfair and the Court must regard it as oppressive.
As a conclusion, the issue of oppression in determining the voluntariness of an accused in giving confession is well accepted in our country by adopting the principles laid down under common law.
by Heng Eng Gee
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