The Trial Within A Trial Of Confession Statement Caused By Inducement, Threat Or Promise

In section 17(2) of Evidence Act, ‘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.’

The wording of Section 24 is produced as such: ‘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.’

            The confession must have been obtained by reason of any inducement, threat, or promise proceeding from a person in authority. In the case of Deokinanan v R [1968] 2 ALL ER 346, it is stated in Privy Council that: ‘then it may be that there is a similar risk that in some circumstances the confession may not be true if induced by a promise held out by a person not in authority’

            The need for trial within a trial arises whenever the admissibility of a confession is challenged. This is based on the case of Federal Court in the case of Sabli bin Adin & Ors v PP [1978] 1 MLJ 210.

            The procedure in trial within a trial, according to the case of Abdul Mahmud v PP [1980] 2 MLJ 50, is that ‘the accused is entitled to cross-examination and thereafter to give evidence in support of his objection. Similarly the prosecution is also entitled to cross-examine the accused and his witnesses, if any. At the close of the case, the court has to make a decision whether the statement was made voluntarily or otherwise.’

            The confession must also appear to the court to have been caused by any ITP. In the case of PP v Aris Bin Yunus [1989] 1 CLJ 239, Shankar J held that:  ‘the word is not ‘proved’ but ‘appears’..whenever any sort of doubt creeps into the mind of the court or when the question of voluntariness is raised by the accused, the better and sounder opinion certainly is that it is for the prosecution to show affirmatively to the complete satisfaction of the court the voluntary nature of the confession.’

            The case of Panya Martmontree v PP [1995] 3 SLR 341 held that the wording of ‘if the making of the confession appears to the court’ imposes a higher than normal burden on the prosecution, such that the slightest doubt is sufficient to exclude the statement. This view express by Singapre Court of Appeal merits serious consideration. That particular use of the word ‘appears’ in the section has given rise to the impression that the slightest suspicion of impropriety is sufficient to rule out a confession. The use of word ‘appears’ in the section entitles an accused person to merely raise the issue of inducement with the result that the burden of proof of voluntariness shifts to prosecution. The case of Md Desa bin Hashim v PP[1995] 3 MLJ 350 in Federal Court also ruled that there must be a ‘well-grounded suspicion’ to render a confession involuntary. In the case of Hemraj v State in the Indian Supreme Court :‘it is for the prosecution to show affirmatively to the satisfaction of the court that the confession was voluntary. If there is the slightest doubt or suspicion about its voluntary nature, the scale will be turned in favour of the accused., burden is on prosecution.’

            Based on the Federal Court of Francis Antonysamy v. PP [2005] 2 CLJ 481 , the manner of proving voluntariness is that: ‘While it has been correctly recognised by the learned judge that the prosecution must prove beyond reasonable doubt that a cautioned statement was given voluntarily it is an error of law to say that the defence must prove an allegation of assault on a balance of probabilities.

The burden of proof on the prosecution, according to the Supreme Court in the case of Hasibullah bin Mohd Ghazali v PP[1993] 3 MLJ 321, it is held that ‘the onus is not on the accused to show involuntariness but on the prosecution to prove beyond any reasonable doubt that the confession was voluntary. The word ‘appears’ also entitles an accused person to merely raise the issue of inducement with the result that the burden of proof of voluntariness shifts to the prosecution.

To sum it up, the burden is very heavy to discharge on the part of DPP because the ‘confession’ is not admissible if it ‘appears’ to the court that it was not voluntarily made. 

In the case of DPP v Ping Lin [1976] AC 574, the test of voluntariness is applied in a manner which is partly objective and partly subjective. The objective limb is satisfied if there is a ITP, and the subjective limb when the ITP operates on the mind of the particular accused through hope of escape or fear of punishment connected with the charge.

            There is also a waiver in this trial within a trial. The requirement of a trial within a trial may be waived. This would arise when the defence does not challenge the voluntariness of the statement when it is sought to be introduced by the prosecution. This is stated in the case of PP v Arokiasamy a/l Alphonso [2008] 3 MLJ 251.

            No particular form of words are required to waive a trial within a trial. All that is required is that the accused must waive the requirements of a trial within a trial and admit the statement is voluntary and admissible. In the case of Park v The Queen [1981] 122 DLR(3d) of Canadian Supreme Court it was held that ‘All that is necessary is that the trial judge be satisfied that counsel understands the matter and has made an informed decision to waive the voir dire. It is sufficient for counsel to indicate that no objection is taken to admission of the statement without a voir dire,..’

            With regard to evidentiary value of a confession, according to Mc Gilligan J in the case of Tinit & Ors v PP (No.2) [1964] MLJ 389, it is stated that: ‘A confession, once it has been accepted as voluntary is to my mind the strongest evidence,..’

            According to the case of Osman & Anor v PP [1967] 2 MLJ 137, Viscount Dilhorne in the Privy Council held that ‘..an accused can be convicted on his own confession, even when it is retracted, if the court is satisfied of its truth.’

            The last point would be the court’s discretion to exclude evidence of an admissible confession. According to the case of R v Sang [1979] 2 ALL ER 1222, Lord Diplock in the House of Lords held that a trial judge in a criminal trial has always a discretion to refuse to admit evidence if in opinion its prejudicial effect outweighs its probative value.

            The case of PP v Mohd Farid bin Mohd Sukis & Anor [2002] 3 MLJ 401 in the Federal Court has stated that the party that is seeking to have evidence excluded in the exercise of the discretion of the court has the onus of showing, on the balance of probabilities, that the discretion should be exercised in its favour.

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LIEW PEI PEI

A132417