CONFESSION ON VOLUNTARINESS

1)

2)

Safee dan Wong didakwa di bawah seksyen 39B Akta Dadah Berbahaya yang membawa hukuman mati jika sabit kesalahan. Selepas ditahan dan disoal siasat secara berasingan selama tujuh jam tanpa makan dan minum, Safee berkata:Wong paksa saya lakukannya. Wong acukan pistol kepada saya dan dia kata dia akan tembak saya kalau saya tak edarkan bungkusan dadah tersebut kepada penerimapenerima dalam senarai Wong.

3)

Semasa persidangan praperbicaraan dan pengurusan kes, peguam Safee memaklumkan bahawa Safee telah membuat kenyataan di atas secara sukarela. Akan tetapi, apabila pertuduhan dibacakan semasa perbicaraan bermula, berlaku kejutan apabila Safee dengan tidak semena-mena menjerit sambil menyatakan yang dia sebenarnya tidak terlibat langsung dengan pengedaran dadah itu. Dia cuma membuat pengakuan itu untuk menamatkan soal siasat yang menyeksakan itu. Oleh itu, pengakuan salahnya itu tidak sukarela.

4)

1)

Bolehkah pihak pendakwa menggunakan pengakuan salah Safee terhadap Wong? Benarkah pengakuan salah itu telah dibuat secara tidak sukarela?

2)

S.17(2) states that 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.

a)

b) c)
d)

S.24 which caused by inducement, threat or promise. Is made as a result of oppression. S.25 which that any confession to a police is below the rank of inspector S.26 where accused under police custody and not be proved unless it was made in the presence of Magistrate / Session Court Judge.

A confession made by an accused person is irrelevant in a criminal proceedings 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 court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantages or avoid any evil of temporal nature in reference to the proceeding against him.

Mohamed Yusof v PP said that inducement need not only made by direct means, it is also sufficient for direct approach for example : from the mannerism of speech or conduct of the person in authority and the court was satisfy from the facts and circumstances that its effect on the mind of the accused is that he has to make statement whether he likes or not. The interrogator had spoken in a rough voice and look angry hence the statement was held involuntary.

In PP v Liik Ching Kwong, Chong Siew Fai J said that the words you must tell the truth or else you will be charged contained the element of threat. In Lau Kee Hoo v PP, there was evidence to show that the accused was induced to make statement by being told that if he signed the statements he would be treat leniently and would not be tried in court. The accused signed it and the court ruled that the statement was not admissible.

The confession is not admissible if it appear to the court that it was not voluntarily made.
In PP v Aris Bin Yunus stated that the word is not proved but appear...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.

Stated that ordinarily a confession duly taken in accordance with law would be relevant, but in the case of any doubt or when challenged, 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.

The classic test of the admissibility of the accused s confession would be applied in a manner of objective & subjective. Objective limb is satisfy if there is a threat, inducement or promise. Subjective limb where when the threat, inducement or promise operate on the mid of particular accused through hope of escape of fear of punishment connected with the charged.

The test is simply whether the Crown have proved the statement made by accused was voluntary, in that sense that it was not obtained from him either because of some person in authority exercised fear or prejudice or held out hope of advantage. The prosecution must establish beyond reasonable doubt that it was voluntary & was not obtained either by fear or prejudice, or hope of advantage or by oppression.

Tan Too Kia v PP, the Federal Court emphasis that the burden of proof on voluntariness is on the prosecution who has to prove beyond reasonable doubt.

The accused was convicted for trafficking in heroin, an offence under s.39(1)(a) and 39B (2) of the Dangerous Drugs Act 1952 and he appeal to Federal Court and the court set aside the conviction stated : it is trite law that an accused prove the statement recorded from him is involuntary. The burden lies on the prosecution to show positively the statement given voluntary. There is also no burden on the accused to raise reasonable doubt as to the voluntariness of cautioned statement.

The only burden on the accused is to show suspicious circumstances surrounding the making or recording of the cautioned statement. so long as the suspicion is reasonable as to the voluntariness of the statement, it is incumbent on the trial judge to hold it inadmissible.

In Datuk Mokhtar Hashim case is an authority for the proposition that the voluntariness test has been expanded to include within its ambit statements which rendered inadmissible by reason obtained under oppression circumstances.

Oppresive circumstances should be determined are : a) characteristic of the accused b) Period of time during which he was questioned c) Length of time during he was in custody d) Whether or not he was given opportunities of rest and refreshments.

OXFORD DICTIONARY defined that a) Exercise of authority or power in a burdensome, harsh or wrongful manner. b) Unjust or cruel treatment of subjects, inferior, etc c) The imposition of unreasonable or unjust burden. R v Priestly said that oppression means something which leads to sap and had sapped that free will which must exist before a confession is voluntary.

Datuk Mohktar Hashim case state tat as to long hours and odd hours of interrogation stated in the station diaries this would appear to be suggestive to oppression. In PP v Tan Gong Wai the accused was allowed no sleep and refreshments from time he was brought into the customs office 8pm 14 April 1981 until he cautioned statement was recorded 5.15am 19 April and the court held that it amount to oppression.

PP v Lee Chee Meng,the court held that the caution statement was not made voluntarily was that the police had failed to observe the Lock up Rules and had taken outside the resting hours for questioning. In PP v Mohd Fuzi bin Wan Teh & Anor, it was contended that handcuffing an accused while he is making a statement has been held amount to oppression because an accused person should feel completely free from any form of restraint .

In PP v Chong Boo See, the accused was charged with drug trafficking. It was held that the court satisfied that the statement was made freely and voluntarily and there were no inducement,threat or promise as alleged. Although no food or drinks was given as alleged, there was no oppression as the accused was young, in good health, or above average intelligence and was mentally alert which could not have sapped his will.
COLLIN v R

a)
b)

c)

It has to determine the sufficiency of inducement, threat or promise It has to clothe itself with the mentality of the accused to see whether the ground would appear to the reasonable for a supposition mentioned in S. 24 It has to judge as a court if the confession appears to have been caused in consequence of any inducement, threat or promise.

To determine the admissibility of caution statement a trial within a trial must be held before the confession can be admitted as evidence. Failure to hold the trial to determine the voluntariness of the statement is fatal. In Abdul Mahmud v PP, the question of voluntariness lies on the prosecution to establish.

The prosecution have to prove beyond reasonable doubt and the defence to prove balance of probabilities that confession is involuntary. When the defence suggest that the confession was made involuntarily, it is sufficient to hold a trial within a trial. So the prosecution must do the trial to prove that it was voluntary made and admitted as evidence.

So in our question, the confession can be said that it was confessed involuntarily because Safee in the court shouted said that he made the statement to stop the torture he had. He hope that the interrogation will end up and he would not suffered the torture anymore. He made the statement just hoping he can escape from the questioning session.