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CONFESSION & ADMISSION

Examples:

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
*Note : not every admission is a confession
but every confession is an admission.

Yes I had an affair with the


deceased admission

Yes I saw 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 buried the


knife in my garden confession

Anandagoda v R
-

Distinction between admission & confession:


CONFESSION

ADMISSION

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

Admissions can be proved against the


maker as an exception to hearsay.

17, 18 and 21 of the Evidence


Ordinance, 1950.

*Note : s.58 : dont 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:

Without

prejudice

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

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

2 CONDITIONS:
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.

CONFESSION

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 more 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 police investigation
started

Logic : statement against


interest it must be true.
Note : confession must be
not be purely exculpatory

Examples:

It must implicate
the maker (must be
inculpatory)

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 CCs 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 its 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.

Junaidi Bambang v PP
-

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)

Exclusion of confession:
s.21 allows for the admission of a confession ,
unless it is excluded by other provisions of law

EA

Other provisions

s. 24, 25, 26

CPC/DDA/CL

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:

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
NOT TIP
1. You had better tell 1. be sure to tell the
the truth - PP V NAIKAN truth R v COURT

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 involuntariness.
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

2.You had better tell the 2.You better tell the


truth , it may be better truth-PP v RAMASAMY
for you -R v FENNELL
3.PP v Liik Ching Kwong- 3. Dont run your soul
You must tell the truth into sin, tell the truth-R
or else you will be v SLEEMAN
charged

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.

OPPRESSION

Deokinanan v R

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 of an
a unreasonable or

PP v Chan Choon Keong

a person in authority is a person who has


control over the accused in the proceeding.
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.

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.

Elements:

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 accused 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 evidence
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


Prosecutions case.

strengthens

the

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
didnt 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

Bala Anak Matik v PP

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.
Wai Chan Leong v PP

Simply nodding not an info if w/o words


PP v Norzilan Yaacob
-

Q :Apa kesan galian itu?


A: Kalau nak tahu ,gali sendiri

(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)