Should one be investigated for any crimes, it is useful to remember that as a starting point, any statement you give in the course of investigation is admissible in evidence at trial- according to s 258(1) of the Criminal Procedure Code (CPC).
In the case of Sulaiman bin Jumari v Public Prosecutor (Sulaiman), the court laid out a framework for deciding when statements will be admitted in evidence at trial.
Voluntariness
Although all statements made in investigation are admissible, a statement will not be admissible if it was not made voluntarily, according to s 258(3) of the CPC. By excluding confessions made because of inducement, threat, or promise, false confessions and improper conduct by law enforcement officers are discouraged.
A statement will not be found to be made voluntarily if:
- Objectively, there was inducement, threat, or promise with reference to the charge against the accused; and
- The inducement, threat, or promise reasonably caused the accused to believe that he would gain any advantage or avoid any disadvantage.
As to what constitutes inducement, threat, or promise, the court shall assess based on the facts of each particular case.
Notably, in Sulaiman, the accused claimed to be suffering from the severe effects of drug withdrawal when he was giving his statement to the recording officer. On this point, the Court was of the view that “intoxication” for the purposes of Explanation 2(b) to s 258(3) of the CPC would not be confined solely to the consumption of alcohol, and intoxication from drug-withdrawal could constitute a defence if, depending on the type and quantity of the substances consumed, the person was deprived of his rational thinking and even consciousness. Nevertheless, the accused could not utilise this defence as his drug withdrawal did not reach the level of severity as required by law.
Kadar Exclusionary Discretion
Even if a statement has been found to be made voluntarily, it is still possible that the statement will not be admitted as evidence in trial if the prejudicial effect of the statement outweighs its ability to prove something.
For example, the prejudicial effect of a statement could be increased if the accused was intoxicated due to alcohol or drugs, in poor physical condition when giving the statement, or if he had poor command of the language used.
Still, the court in Sulaiman has emphasised that this discretion to exclude statements, although not defined clearly, is not for making unmeritorious challenges to statements on their admissibility. Therefore, even if a statement has been made voluntarily, with high probative value, there must be evidence of significant prejudice in order for the Kadar exclusionary discretion to apply.
Noting that statements made during investigations are generally admissible as evidence in trial, subject to voluntariness which depends heavily on the facts, and the Kadar exclusionary discretion which is applicable only in exceptional circumstances, one should make statements during investigations with great caution in order to prevent incriminating evidence from being collected.
Please note that this article does not constitute express or implied legal advice, whether in whole or in part. For your Free First Consultation or if you simply require more information, email us at walter@silvesterlegal.com.
