Explainer: Conviction based on confession of co-accused

What is the ‘confession of a co-accused’?

In Singapore, if two or more persons are being jointly charged for the same crime, the court may admit the confession of the other parties of the joint trial as evidence for the conviction of an accused. Further, the court may rely solely on the confession of a co-accused to convict the accused.

Given the prevalence of joint trials in drug-related cases, there have been many instances in which the ‘confession of a co-accused’ has been significant to a conviction to the death penalty.

What is the law behind this?

s30 of the Evidence Act

“When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession.”

In 2010, this section was repealed and replaced with s258(5) of the Criminal Procedure Code. This came into effect in 2011.

s258(5) Criminal Procedure Code

“When 2 or more persons are tried jointly in any of the following circumstances, and a confession made by one such person affecting that person and any other such person is proved, the court may take into consideration the confession as against the other person as well as against the person who made the confession.”

s258(5A) Criminal Procedure Code

In 2018, the Criminal Procedure Code was amended to add s258(5A):

“Despite subsection (5), the court may refuse to take into consideration a confession as against a person (other than the maker of the confession), if the prejudicial effect of the confession on that person outweighs the probative value of the confession.”

The addition of s258(5A) does not change the position in law since the court always had the discretion to exclude evidence that might be more prejudicial than helpful to the integrity or fairness of its ruling.

A brief timeline on how the law has changed

• Pre-1993 – The conventional interpretation of s30 of the Evidence Act was that a confession could not be the sole basis of conviction, it could only “lend assurance to independent evidence already existing”, which “must be capable on its own (if believed) of sustaining the conviction of the co-accused.” In the case of Sim Ah Cheoh [1991], the court approvingly cited judgments in other countries with similar legal provisions interpreting s30 in this narrower fashion.

• 1993 – The landmark case of Chin Seow Noi and others v PP [1993]: The public prosecutor argued for a wider interpretation of s30 of the Evidence Act, that conviction may be made solely on the basis of a confession of a co-accused. The Court of Appeal ultimately accepted this argument:
  
  “The natural interpretation of s30 is that it allows the conviction of an accused person to be sustained solely on the basis of a confession by his co-accused, provided, of course, that the evidence emanating from that confession satisfies the court beyond reasonable doubt of the accused’s guilt.”

• 2008 – In the case of Lee Chez Kee v PP [2008]: Both the High Court and Court of Appeal express their concerns on placing too much weight on a co-accused’s statements. In his judgement, Rajah JA remarked “It does seem a bit out of the ordinary for a co-accused’s confession admitted under s30 to be attributed so much weight to the extent of it being able to secure a conviction on its own. The need to reconsider this decision may come in the future.”

• Notably too, the Court in Lee highlighted that the reasoning behind this wide interpretation of s30 was to avoid the court being asked to “perform the intellectually difficult task of excluding this evidence against the co-accused” in joint trials. While not disregarding the concerns of unreliability, the court in Chin balanced “the prevention of unreliability and the prevention of an impossible intellectual exercise in favour of the latter.”

• 2017 – Norasharee bin Gous v PP reaffirms the position in Chin: that ‘the court may convict X solely on Y’s confession’ if the confession is “very compelling that it can satisfy the court of X’s guilt beyond reasonable doubt.”

• It set out that the courts should treat the evidence provided by the co-accused with caution, and consider any incentive that the co-accused would have in implicating the accused. However, if the accused person alleges that the co-accused has a motive to frame him, this must be proved as a fact (Norasharee at [59]).

So what are the potential issues?

Even as the case law has focused on the scope of s30 largely as a matter of interpreting the wording of the Evidence Act, we ought to consider deeply the juridical and ethical implications of this wide interpretation of the law on the ‘confession of a co-accused’. 

In practice, the implication of the current legal position is, as we have seen in Norasharee, that the court has focused its analysis on judging whether it could rely on a confession with the use of corroborative evidence pertaining to the confession, instead of the weight of the presence or absence of independent evidence that would connect an accused with the crime. 

The courts have acknowledged that this approach has opened up the potential risk of falsely incriminating others to absolve oneself, that “a co-accused’s confession may not always be reliable because the maker of the statement may lie to shift the blame on the other accused.”

This already existing risk is further amplified with the introduction of the ‘Certificate of Substantive  Assistance’ system, brought into law in 2012. It creates an underlying incentive for a co-accused to shift the blame to the accused or falsely implicate them as mastermind or instigator of a crime—since a person who has provided substantive assistance to CNB in disrupting drug trafficking activities and whose activities are limited to being a courier, may receive a certificate from the Public Prosecutor that allows the court to sentence them to life imprisonment instead of the death penalty. 

While the trial judge in Norasharee did accept that a co-accused in such a person may have an incentive to get a Certificate, it did not go much further in discussing how the court could account for this underlying incentive. This incentive, unlike other reasons to falsely incriminate a co-accused, is already factually pre-existing. It is difficult to judge what role it plays in the mind of the co-accused’s confession.

The courts have always as a matter of principle found self-incriminating statements to be more reliable than statements that incriminate others while denying one’s own responsibility, readily giving the former significant weight as evidence. In contrast, it is (for good reason) cautious in admitting statements that shift away blame, looking to exercise ‘special scrutiny’ in those cases. However, the ‘Certificate of Substantive Assistance’ system places the co-accused in a position where they would have to self-incriminate in the process of providing substantive assistance to the CNB.

Ultimately, even if we have some confidence in the court’s ability to weigh the truthfulness of a confession of a co-accused that implicates others, the irreversibility of the death penalty means we ought to tread even more carefully where any risk of a miscarriage of justice exists. 

While TJC ultimately seeks the abolition of the death penalty, we also think that  we ought to  reconsider the legal position that conviction could take place solely on the basis of a co-accused’s confession.

Sources

1. Amran Bin Eusuff & Anor v Public Prosecutor [2002] SGCA 20, [30]
2. Public Prosecutor v Mohamad Yazid bin md Yusof [2016] SGHC 102, [30]
3. Evidence Act, s 30
4. Criminal Procedure Code, s 258(5)
5. Criminal Procedure s 258(5A)
6. Chin Seow Noi and others v Public Prosecutor [1993] SGCA 87. [54]
7. Sim Ah Cheoh and others v Public Prosecutor [1991], SGCA 14
8. Chin Seow Noi [1993], [84]
9. Public Prosecutor v Lee Chez Kee [2007] SGHC 4, [68]
10. Lee Chez Kee v Public Prosecutor [2008] SGCA 20, [113]
11. Lee Chez Kee [2008], [112]
12. Norasharee bin Gous v Public Prosecutor and another appeal and another matter [2017] SGCA 17, [54,59]
13. Imran Bin Mohd Arip and others v Public Prosecutor [2020] SGCA 120, [62]