The Right to Give an Unsworn Statement and the Right to Remain Silent
William Strang, (1895) The Surprising Adventures of Baron Munchausen, Lawrence & Bullen. “At the ardent request of the whole empire, I condescended to be president of the court.”
I wish to share with you some thoughts on the unsworn statement and the right to remain silent, with a proposition on weight (more to do with judicial rather than dietary habits). I will compare them to the sworn statement, which is the most popular mode of presenting the testimony of an accused person.
In a criminal trial, if the Court finds that a prima facie case has been established by the Prosecution, the Court shall call the Accused to enter their defence. The law requires the Court to inform the Accused that they may choose 1 out of 3 modes of defending themselves.
The law gives an accused the right to choose between sworn testimony (the default for the majority of criminal trials), unsworn statement and remaining silent. These choices are called elections.
The Court is not permitted to criticize or make adverse comment on the election. However, each election comes with its own pros and cons, which the Court is required to explain to the accused.
It is fortunate that the we have the right to make the election if we are facing a criminal charge. We did not always have a right to choose.
Richard Popper wrote in “History and Development of the Accused’s Right to Testify”:
“In fact, for at least three hundred years, between the sixteenth and nineteenth centuries, the defendant in a criminal case was not permitted to testify in his own behalf even if he desired to. It is this inflexible rule of incompetency for the purpose of giving evidence which will be examined in its his- torical perspective. A statute passed in 1695 marked the first time the defendant was permitted a lawyer to aid him in his defense against charges of treason. For other felonies he waited until 1836”[1]
The concept of incompetency mentioned in the above quote has a deep historical meaning which I would do violence without thorough research. It is not exactly the modern Malaysian concept of competence to testify but it has the same jurisprudential roots. I am not discussing that here for this writing.
THE 3 ELECTIONS
An unsworn statement is one of the 3 modes of presenting the defence by an accused person, which are:
1. To give sworn testimony from the witness box (pernyataan bersumpah). This means that when the Court calls the Accused to enter his defence, the Accused may then testify on oath. He is escorted from the dock (“kandang tertuduh”) situated at the middle of the court room, to the witness box (“kandang saksi”) often situated at either side of the Judge or Magistrate. He takes an oath to speak the truth and nothing but the truth, and then he gives oral evidence. He may then be cross-examined by the prosecutor and by counsel for co-accused if there are other accused persons tried jointly with that first Accused.
a. The benefit of this mode of defending yourself is, the value of your evidence is at its highest potential – it is perhaps on par with the testimony of any other witness from the prosecution. Even if the prosecution calls many witnesses to testify on one fact, it does not mean that their story will outweigh yours. This is because in our system, “evidence is weighed, not counted”.
b. The drawback of this mode is that you will be cross-examined by the prosecutor. This is a serious matter because tactically the effect of cross examination by the DPP is a bit different from the cross examination of prosecution witnesses by defence counsel, because:
i. At that stage of the proceedings, the Court has made a finding that the prosecution has proved a prima facie case, whereby each and every prosecution witness has been subjected to the maximum evaluation test. From a practical perspective, it is like “beyond a reasonable doubt”. So the DPP can put questions and issues to you, based on arguments and things that the Court has already accepted. Thus the DPP’s suggestions hit harder than the cross examination by defence counsel at the early stage of a trial which often are based on your instructions and, at that point in time, not supported by much before the Court. As they hit harder, they cannot be dismissed easily by mere denials from the Accused. If the Court called for defence based on the testimony of 4 witnesses, for example, the DPP can rely on the material of the said 4 witnesses and put them to you, taking for granted (as thought) they have been proven. The cross examination by defence counsel at the early stage of the trial often does not enjoy this advantage.
ii. The CPC requires that the Accused be called first. Therefore, if the Accused is destroyed in cross-examination, he is pretty much finished even if he has good independent credible defence witnesses. This is especially so for cases that emphasise the demeanour and credibility of the Accused such as cases of “he says versus she says”, and, though still important, perhaps less important in commercial crimes cases where the case is established by transfer of monies and the defence is founded on diffused responsibility, or those (questionable) things recommended by Section 17A of the MACC Act 2009.
c. The Accused who has testified on oath has the right to be re-examined after being cross-examined. The importance of re-examination for an Accused person’s testimony is even more pronounced compared to re-examination of a Prosecution witness. Often, the Prosecution has one witness to establish each fact in issue, supported by a few backup witnesses who can prove the same thing. If the testimony of one of the witnesses has been damaged or a loophole exposed (or created), the prosecutor may call on such backup witnesses to explain, patch up or downplay those loopholes. This is because sometimes doing so through fresh witnesses is better than re-examining a damaged witness – keeping in mind the danger of material contradictions. The Accused does not enjoy such advantage because he must speak first! The DPP makes a judgment call there and then on how to repair a damaged (Prosecution) witness’s testimony. There is a skill in re-examining very minimally, just enough to “cover” against a submission or a decision that a challenge remained unanswered or unrepaired. My advice to defence counsel is to prepare thoroughly because you can guess that the DPP will not cross-examine the Accused beyond the scope of the case already before the Court. If the DPP cross examines the Accused on something that was not proved during the Prosecution stage, you could try this objection: “My Lord / Your Honour, I would like the learned DPP to inform what is the basis for his suggestion to my client. It was never before the Court during the Prosecution’s case. If it wasn’t in then, it shouldn’t be in now, as splitting their case is improper, unless the DPP can justify why.” We are taught that in cross-examination, that you can ask any question under the sun. Actually, it is not that simple. The question has to be relevant, even if it is to test the veracity and credibility of the witness (including the Accused). My advice to our learned prosecutors is that sometimes you think that your witness has been damaged in cross but actually the damage is not that serious. I observe that sometimes DPPs seem to want to play it safe and re-examine on every point in cross examination. This is not necessary and it can make your situation worse. I have seen it become worse a couple of times in re-examination by the DPP, especially when the witness was an IO who thought he knew what the DPP wanted, then overexplained. Thorough preparation with the IO before trial could mitigate such risks. But you know that already.
Digression on Our District Prosecutors and Why Special Attention Needs to be Given to Them
Heads of departments, seniors and State Directors should not take it for granted that your learned officers on the ground have the time, resources and training to prepare their trials correctly, efficiently and effectively (and ethically). Even if they have been handling trials for 2 years. I know it is very difficult to do this with your own workload. Try to sit in some of their sessions, unplanned, and give them some pointers. You need to do this to break bad habits and to allow your juniors quality time with you. Bad habits are sometimes hard to monitor but their consequences are heavy. You may be surprised to find bad habits in the way they prepare 51A documents (if they prepare at all — or do they just minute to the IO to prepare 51A documents without assigning thought into it?), submissions and taking care of civilian witnesses. I have witnessed rows of civilian witnesses aghast and lost when their case was postponed and the DPP just walked past with zero explanation and zero accountability. This benefits especially our colleagues posted in remote districts who do not meet the State Director every day. In their busy week, they may not realise how important their position really is at the district and how much people put hope in them that they do their job properly and fairly. In my book, a phone call to the senior or State Director every once in a while whenever the officer is facing a stumbling block does not qualify as quality time. Delegating the task to a middle management officer who themselves need monitoring, does not qualify. Having monthly big meetings lecture-style does not qualify. One boss overseeing scores of officers in the bigger states, combined with numerous administrative duties makes this an onerous task indeed. Well it does not require a formal occasion, it can even be done spontaneously over a coffee or a tour of the district (well the Director could use a good reason to walk about once in a while, yes?). I think I was just spoiled by the generosity of so many good seniors at Putrajaya and Penang who made the time for us. They did this for us even if they were bosses of different units, especially the treasures at Unit Rayuan. I wish to emphasise that skill and habits are picked up and maintained by the officer but the transmission of values, ethics and tradition comes from above. If you and the seniors do not transmit the values, believe me, it will be filled by values from elsewhere — from the IOs, from friends who themselves have bad habits and take shortcuts in work processes, and elsewhere.
Remember there is a maturity gap between some officers and the amount of power they wield. You know what I am talking about. Do not assume that just because your officer has prosecuted X number of trials, got X number of convictions per year does not mean they should be left alone. Sit in and see for yourself every once in a while. Do this and I believe the quality of prosecution in your state will improve. If you do not give them the time, you would likely continue to have Representasi not brought to your attention in a timely manner, decisions to withdraw cases done without your knowledge, poorly prepared cases and worse things that need not be mentioned.
I concede, it is less blameworthy to err on the side of re-examining instead of being blamed for not. A prosecutor may intentionally call a less important witness first to draw out the defence counsel’s strongest challenge, then with the benefit of seeing what the defence has got, then call the really important, more sensitive witness, such as a child, an agent provocateur, a spy or an investor. The defence cannot avail of such a strategy.
2. To give an unsworn statement from the dock (pernyataan tidak bersumpah dari kandang tertuduh) . When the Accused elects to give an unsworn statement, the Accused stands up from where his is in the dock but he does not go anywhere. Instead, while standing he speaks from where he is. The Accused does not make an oath to speak the truth and nothing but the truth. He may still produce and identify documents and call other witnesses. If he calls other witnesses, they all must testify on oath just like prosecution witnesses. It is common for the Accused to read from a prepared text, often advised by the defence counsel.
a. The benefit of this mode of defending yourself is that you will not be cross-examined by the prosecution nor by any other co-accused. For reasons discussed above on sworn testimony, it is a great advantage.
b. The disadvantage is, the Courts mark down the value of your unsworn statement. This is because your unsworn statement was not cross-examined by the DPP. For the defence counsel and the prosecutor, cross-examination is the definitive method to test and challenge the veracity of a witness and expose them when they are telling lies or avoiding questions. When Judges are impressed by a witness, they often note that “the witness was unshaken in cross-examination”. Though a well-rehearsed and well-prepared witness could foresee such challenges and prepare for convincing responses in advance, as well as the well-timed pitched voice, crocodile tears or tone of indignation; judges have decades of litigation experience behind them followed by years on the bench observing and studying the responses of many types of witnesses: interested, hostile, calculating, evasive, defensive, overzealous, and the list goes on. Judges should not be easily impressed. But they do get impressed and they do invent concepts such as witnesses who are “unusually convincing”, which are the type of witness whose oral testimony can land a conviction even uncorroborated (yes, “unusually convincing” is a thing, just peruse judgments for sexual crimes – “unusually convincing” usually is followed by something like “despite being under rigorous cross-examination by defence counsel”). That being said, I remain in favour of the jury system for cases that require the determination of how an ordinary person may act in a particular set of circumstances. Or whether a complainant was really unusually convincing.
3. To remain silent (berdiam diri). This means that when the Court calls the Accused to enter his defence, the Accused informs that he exercises his right to remain silent. The Accused is still permitted to call other witnesses to establish his defence, for example an expert witness who could testify on the subject of the Accused’s mental condition at the time of the incident, with a view of establishing a defence of unsound mind. I do not know what are the circumstances that remaining silent advantage an Accused person. This is either high-order strategic defence or the defence does not know what it is doing. The Accused had claimed trial and the defence has presumably cross-examined the prosecution witnesses, therefore remaining silent does not mean the accused person concedes to the charge. I can only think of 3 examples of accused remaining silent. All resulted in convictions:
c. One of the Dato’ Seri Anwar Ibrahim cases. He remained silent. If I read correctly, his lawyers walked out.
d. The Canny Ong case.
e. A drug trafficking case involving 2 accused persons. Hj Hisyam Teh Poh Teik and I were assigned by the Court of Appeal to represent them on appeal. Hj Hisyam’s client had remained silent at the trial stage (represented by a different lawyer). I asked Hj Hisyam why his client elected silence, and Hj Hisyam just shrugged. What else can we say as assigned appellate counsel?
In all 3 examples above, the accused persons who elected to remain silent were represented by reputable senior lawyers at trial stage.
WHAT IS THE MEANING OF WEIGHT?
If you are considering giving an unsworn statement, you need to understand what weight is and how it will be affected if you do not testify on oath and are not cross-examined by the prosecutor.
Evidence law is about 3 things:
(1) Relevancy
(2) Admissibility
(3) Weight
Parliament, DPPs and defence counsel are concerned with the first 2. On top of the first 2, only the Judge has a say in the third. Weight is not defined in the Evidence Act 1950. It is basically an imaginary probative value assigned by the Judge when considering whether something is proved or not proved. We seldom find judgements expressing expressly the mental considerations on the weight of one set of evidence against another.
Weight is probably the least developed area of our evidence law. I think judgments should include any evaluation of weight especially if the weight changes throughout a trial. If judgments can include Radzi templates, Balachandran templates, prima facie and maximum evaluation templated, mens rea possession and over act templates, among other things, they can include one more.
FLUCTUATING WEIGHT
In my opinion and from my understanding, weight is not constant but can shift throughout a case. There are things that can cause the weight of a witness’s testimony to be marked up, and there are also things that can cause such weight to be marked down, even fluctuating within the same trial. I am still studying this proposition of shifting weight, and am persuaded by an observation by my learned brother and senior, Justice Awang Armadajaya bin Awang Mahmud JC in PP v ROSNAN ISMAIL [2020] MLRHU 1337:
“[94] In PP v. Tan Gong Wai & Anor [1984] 2 MLRH 551; [1985] 1 MLJ 355, the Federal Court has this to say, inter alia:
I realised that no adverse inference against an accused person may be drawn by reason of his failure to call any witness or indeed to even give evidence on his own behalf for all he has to do is to raise a reasonable doubt: (Goh Ah Yew v. Public Prosecutor [1948] 1 MLRA 651; [1949] 1 MLJ 150. However, the failure to call any particular witness is a matter which the Court may take into account in assessing the weight of evidence (without drawing any adverse inference) especially so when the potential witnesses were persons in respect of whom the prosecution had probably no means of knowing that they might have any relevant evidence to give until the accused himself came to give evidence (Regina v. Gallagher [1974] 1 WLR 1204; Public Prosecutor v. Lim Kuan Hock [1967] 1 MLRH 104; [1967] 2 MLJ 114, 115; Tay Choo Wah v. Public Prosecutor [1976] 1 MLRH 245; [1976] 2 MLJ 95, 100.
[95] The important ration decidendi here is "However, the failure to call any particular witness is a matter which the Court may take into account in assessing the weight of evidence (without drawing any adverse inference) especially so when the potential witnesses were persons in respect of whom the prosecution had probably no means of knowing that they might have any relevant evidence to give until the accused himself came to give evidence”
and further down:
“[99] While I am not invoking adverse inference against the Respondent in our instant case but it certainly invite comments on why the friends who were arrested and present were not called. At the very least, attempts being made but way of applying for subpoena against them for their presence in court.”
I think the view undertaken by the learned Judicial Commissioner is sound, albeit putting defence counsel on guard to ensure that the case that they put forward does not emplace them in a situation where they may need to call witnesses in support. The decision on what line of defence is undertaken, should be finalised before the commencement of trial (or even earlier). Like footballers be wary of the offside trap, lawyers be wary of the afterthought trap! Early determination of the direction of a defence will allow the defence counsel to foresee and plan pitfalls that may cause the client’s testimony to become devalued. Defence counsel should also look for ways to cause the testimony of prosecution witnesses to be devalued.
This is pertinent in a situation where your client is giving an unsworn statement. The position of the law is that for unsworn statements, the Court can assign weight as it sees fit. So do what you can so that your client’s statement is given fair weightage and not unfairly devalued. It is often the case that the decision on mode of defence is not determined at the outset. That is OK. Just ensure that the direction of the defence narrative is clear, coherent, plausible, and (preferably) can be corroborated. I am interested to study the issue of weight in more depth.
WHAT IF THE ACCUSED INTENDS TO GIVE AN UNSWORN STATEMENT BUT HAS NO SUPPORTING DEFENCE WITNESSES?
For general crimes and drugs cases, it is normal for the Accused to have no supporting witnesses.
The defence should reconsider putting forward such a defence (referred in the decision of the learned Judicial Commissioner above) if they are instructed that the other witnesses are available but hostile. If the defence is instructed that such witness are hostile but unavailable and they are instructed that the prosecution does not (or better yet, will unlikely or never) have access to them, there could be some tactical risk that could be considered for the client’s benefit. It behoves this risk-taker then to satisfy the Court that all reasonable steps have been undertaken to locate such defence witnesses. Show your effort.
If the witness has been identified and established as a real person and not a fictitious red herring, then the defence should apply for a subpoena. And at least try to simulate some effort. In my humble view, no party should be faulted for not applying for a subpoena if they do not know the identity or address of service of such witness. Applying is one thing, serving and compelling attendance is another. The court at that stage would not be concerned whether the correct address (or even name?) is stated, but that there is a signature or thumbprint on the return (court’s copy) at the foot of the subpoena. Without digressing further, even a signature or thumbprint is only evidence but not proof of service — service can be proved by sworn testimony (or affirmed in an affidavit perhaps) of the process server who should also explain why a signature could not be procured.
In any event, even if the defence is put in such a position as described by the learned Judicial Commissioner above, and the defence is unable to procure the witnesses or satisfy the Court on the effort made to locate them, what is the worse that can happen? It just means that the Court marks down the weight of the Accused’s testimony. The Court does not make adverse inference outright or reject the evidence. The Court can still acquit such an Accused person, because even the devalued weight of his testimony can cause a reasonable doubt in the prosecution’s case.
I am aware of only one case where the trial court acquitted an Accused person who gave unsworn statement. This does not include Rosniza Ibrahim who was acquitted by reason of insanity. There was a firearms case prosecuted by Hj Yusaini Amer bin Abd Karim, involving a hand grenade. Defence was called, and the accused gave an unsworn statement. If I remember correctly, it was either Dato’ Abdul Halim Aman or Tuan Muhammad Amin Firdaus who acquitted him in 2009 or 2010. Please inform me if you know the name of the case.
Appellate counsel and appellate panels should be vigilant that a trial judge who undertakes this approach does not (1) ritually state that there is no adverse inference and not duty on the defence to prove the Accused’s innocence; but in actuality (2) makes an adverse inference against the Accused. Judgment-writing is an esteemed craft indeed, and the skill of appellate panels to read between the lines and get a (supportable) feeling of what actually transpired at trial and in the trial judge’s mind becomes even more essential.
Over 50 years ago, the Federal Court in MOHAMED SALLEH v PUBLIC PROSECUTOR [1968] 1 MLRA 851 opined :
“You must not reject the statement of the accused, you must consider it and give it such weight as you think it is worth having regard to the other evidence that you have.”
WHAT IS WEIGHT COMPOSED OF?
In my reading I have not found a decision that clearly and expressly defines and delineates the scope of weight in decision-making. Therefore I find it challenging to dissect and articulate this important topic. But we have to articulate it if the weight of our client’s testimony has been marked down. In my opinion, the determination of weight is based on 3 things:
1. The source of evidence. Who is the witness or what is the document. Is it a direct eye-witness or a witness of subsequent conduct. Or just a witness of opinion or a character witness.
2. The significance of such evidence in relation to the proof or disproof of the facts in issue. I suppose it is another way of saying probative value.
3. The quality of such evidence. This can be expressed by:
a. Level of detail versus lack of detail. A detailed document or oral description of someone or what an eyewitness saw is entitled to more weight than one that has less detail.
b. Whether the witness is persuasive (this is not demeanour). The evidence of a witness is entitled to much weight if it is persuasive, reasons are provided.
c. Compelling reasons that justify a witness’s conduct before, during or after the incident. This is similar to b. above except that the reasons are not from the witness’s own mouth but can come from other witnesses, from surrounding circumstances or from matters within judicial notice.
d. Degree of authoritativeness. Authoritativeness allows us to make assumptions that something is right or truthful or valuable just because the person or entity asserting such fact is an authoritative source or is of high standing, high-status, or just credible in the eyes of the public. This relates to expert opinion, or testimony based on experience or standing. Such as a parent testifying on the conduct of their child or an employer testifying on the expectations on their staff. A Judge may assign more weight to the opinion of a parent on their child’s conduct compared to what an expert thought of such conduct.
e. Grounds of opinion. This is related to d. above and Section 51 of the Evidence Act 1950. A expert witness who has tested and fired a firearm himself on its serviceability is entitled to more weight than an expert witness who comments based on theoretical reconstructions, based on the reasoning provided by each expert in coming to their conclusions. In my view, the Judge may assign more weight to an eyewitness who testified on oath, versus an expert witness called to express an opinion to show that such observation is unlikely. In relation to this paragraph, in certain circumstances, the Judge may actually find there is doubt on the eyewitness testimony if the expert can suggest alternative explanations for what the eyewitness observed, and back it up with grounds of opinion.
4. Whether such evidence is believable or is dubious. In judgments we also see words like “plausible” and “implausible” used to characterise the narration of facts by the prosecution and defence witnesses. This can be considered directly or abstractly:
a. Directly: By assessing the demeanour, antecedents and criminal record of a witness.
b. Abstractly : By considering any statutory or doctrinal impairments on such testimony. For example, whether such evidence was verified by cross-examination – this being the case for out of court statements under Section 32(1)(i) of the Evidence Act 1950, unsworn testimony, the testimony of interested witnesses. Though the law does not require any number of witnesses to prove a fact, a Judge may unconsciously (and I do not blame their Lordships) give more weight to an assertion of fact corroborated by many independent pieces of evidence.
Weight is important in considering whether there is sufficient evidence to prove a fact in issue, or to rebut a statutory presumption. An assessment of weighted evidence is always done, but seldom articulated expressly in a judgment, in the Court’s determination of guilt or lack thereof.
The literature (from judgments) suggests that the Court can give full weight to the sworn testimony of the accused compared to unsworn testimony. However, in my view, this consideration of weight is subjective and is most ambiguous and potentially arbitrary of the tools in the arsenal of a trial judge – the other being relevancy and admissibility which are subject to defined statutory rules.
SINCE SWORN TESTIMONY IS GIVEN MAXIMUM WEIGHT, DOES THAT MEAN THE ACCUSED SHOULD TESTIFY ON OATH EVERY TIME? IN WHAT SITUATION SHOULD WE CONSIDER GIVING AN UNSWORN STATEMENT INSTEAD?
Balancing the Risks
There are a constellation of judgments that have penalized sworn testimonies for being afterthought, bare denials and whatnot. This shows that the advantage of great weightage may be diminished against the risks of being destroyed in cross-examination. At best, the judgments suggest that sworn testimony is best for cases involving credibility and situations where the defence is placed on an evidential burden to rebut (see PP v. Yuvaraj [1968] 1 MLRA 606). You might as well go for the unsworn statement option if you have put a good case during Prosecution stage, you tendered your Section 112 CPC statement through the IO, you have good defence witnesses. But this is your liberty we are talking about — measure the risk of being destroyed in cross-examination (the sworn option) versus the risk of diminished weight (the unsworn option).
The Client Might Not Perform
Another scenario where unsworn testimony is better, is if the defence counsel is of the view that the Accused is just not a believable person or speaks in an unbelievable, off-putting way, that he will not perform in cross-examination. This is hard to explain in print. The reality is, even honest people may come off as being not credible because they speak arrogantly or in a shifty uncertain manner or fearfully. The Judge is not a charity institution. And the Accused has only one chance to get it right. Therefore, if the Accused gives off a bad vibe, or is a bumbling sort who overstates things excitedly, it may be for his own good that he is protected from cross-examination. “Control” him with a prepared statement. Because if he speaks on his own it can be damaging as well. I have witnessed, some witnesses whom I feared were unassertive characters, become lions in the witness box when their integrity is challenged. We acknowledge there are judgments where the Judge had given the benefit of the doubt to the Accused on account of his level of education, economic status, family background and the like. Do not assume that your Judge will be as charitable.
WHERE DOES UNSWORN STATEMENT STAND IN RELATION TO THE 3 ELECTIONS?
I was taught that unsworn statement is the second best choice of the three. In reality, unsworn statement is significantly inferior to the sworn testimony. To me, unsworn statement is not a real alternative to a sworn testimony. It is actually just an alternative to remaining silent.
Harminder Singh Dhaliwal HMR in LOW CHIEW MUN v. PP [2020] 1 MLRA 212 explained:
[23] The principles are well-settled. The accused has a right to either remain silent, provide a statement from the dock or give evidence on oath. Certainly, no adverse inference can be imputed against the accused for his election. If, however, he elects to give a statement from the dock, he is not subject to crossexamination. As such, his unsworn testimony which is not subject to crossexamination carries a risk that it may not be given the same weight as evidence given on oath. At the end of the day, it is up to the trial judge to decide on the weight to be given after considering the entirety of the evidence and then assessing whether the accused has put up a credible defence and whether he has been able to cast a doubt on the prosecution's case.
His Lordship had considered the position of law on the subject (there are numerous cases, which I will not list here). From His Lorship’s explanation, we understand that an unsworn statement does not have a value of zero in the eye of the Court. The Court may assigned weight as seen fit.
Even though the Court will refrain from putting to paper any adverse comment to your election to give an unsworn statement, you can imagine the dark thoughts in the mind of the Judge. “If he had nothing to hide, why not just be open to cross examination?” Being human, such a question and its moral implications are irresistible. But it is actually wrong to entertain such moral implications or to ask such questions. There are a few laws that permit the Court to draw an adverse inference against an Accused, and that is so because Parliament has enacted it into law. Other than that, the Court is not supposed to.
The Federal Court opined in the oft-cited authority on this subject, MOHAMED SALLEH v PUBLIC PROSECUTOR [1968] 1 MLRA 851:
Well, members of the jury, that is the case for the prosecution. Now what is the accused’s defence to this charge? You must also consider his evidence, or rather you must consider his defence. The accused, as you know, did not give evidence on oath. He made a statement from the dock and he could not be cross-examined by the prosecution, he could not be questioned by me, he could not be questioned by you. Members of the jury, you will naturally not be inclined to give so much weight to what he said in the dock as you would if he gave evidence, because when a man gives evidence one can cross-examine on it and test it and generally have a much better opportunity of assessing it. Of course, you must not reject the statement of the accused, you must consider it and give it such weight as you think it is worth having regard to the other evidence that you have.
The above dictum of the Federal Court is over 50 years old but it is still good law. For unsworn testimony, the Court must not reject it but must consider it and give it such weight as seen fit. The considerations suggested is “having regard to the other evidence that you have”. I think with the evolution of law in these past decades, the Court may consider other factors as well.
Effectively, even if the Court does not say so, the test at the end of the Prosecution case is beyond reasonable doubt, as though the entire case rested on the evidence adduced up to that point. Every DPP I knew in my batch was trained so as to prove the case at that standard.
MY OWN EXPERIENCE WITH UNSWORN STATEMENTS
Sworn statements are still the dominant mode of defending oneself in a trial. Up to now, I have seen unsworn statements being elected only thrice –
a. Rosniza Ibrahim – She was charged for murdering her 2 sons by strangulation. She gave unsworn testimony, reading from a text composed in her own handwriting. She was shaking and said some ominous stuff. She was backed by a psychiatrist report and was acquitted on the ground of insanity.
b. Roslan Husain – We marshalled a phalanx of circumstantial evidence against him, including a dying declaration, DNA, information leading to discovery of a parang, we tested the shape of the parang with the shape of the cuts on the victims’ clothes supported by the expertise of Jabatan Kimia; the deceased’s cash found under his bed which matched exactly the amount that the deceased informed a witness. The accused gave an unsworn statement which was basically an alibi; he gave no Notice of Alibi. I thought it was a solid conviction, but he was acquitted on appeal. The appeal was reported.
c. M Gunasegaran – I was assigned to defend this gentle, shy individual. He was so affected by a romantic break-up that he stabbed his lover in the neck with a knife two times. He brought the deceased’s body to the police station and told the police that he killed her and her body was in the car. The police found a goldmine of evidence in the car, all pointing to the Accused. I raised objection to attempts by the Prosecution to adduce evidence that the Accused bought the knife soon before meeting the deceased for lunch – this was because the CCTV forensic evidence from the shop and retail evidence of the purchase was fraught with errors. He was convicted for murder and sentenced to death.
WHAT IF THE ACCUSED CHANGES THEIR MIND AFTER THEY GAVE THEIR UNSWORN STATEMENT?
The trial Judge should allow the Accused to make a sworn statement on oath, although they had earlier elected to give an unsworn statement and had already given such statement from the dock.
His Lordship Augustine Paul allowed the appeal and opined in Abdullah Jacomah v PP [2002] 2 MLRH 686:
The second objection is that the learned Sessions Court judge refused to allow the accused's application to give sworn evidence after he had completed making his statement from the dock. In my opinion the application ought to have been allowed. At the time of making the application no other defence witnesses had been called yet. Thus the application made by the accused will not in any way conflict with s 173(j)(iii) of the Criminal Procedure Code which provides that the evidence of the accused shall be taken before that of other witnesses for the defence. The application made by the accused, though of undoubted inconvenience to the court, is consistent with the rule that every possible opportunity should be afforded to an accused to defend himself. The result of these breaches is that the accused has been denied the right of advancing his defence in the best possible way which amounts to a miscarriage of justice.
I am obliged to my learned brother counsel, Tuan Asmadi Hussin for referring me to the above authority. The said decision also contains many good points on the right to counsel and the right of a counsel in the discharge of his functions.
THE RIGHT TO REMAIN SILENT
The right to remain silent is tied closely to the presumption of innocence. These 2 concepts stand at the border between State Power and Individual Rights. The struggle and interaction between State versus Individual happens whenever the conduct of the Individual is scrutinized by the State and investigated.
The right to remain silent is a choice that has consequences. But no one can force you to speak. It was not always that way. Many governments in the world still expressly or implicitly permit torture to extract information from witnesses.
Here are the stages under the CPC where the right to remain silent is discussed:
(i) Under our CPC, the right to remain silent begins even before arrest. A bystander, witness or actual perpetrator need not volunteer information of a crime. There are some exceptions, for example persons responsible for the care of children. If a parent or guardian or caretaker fails to report on any signs of abuse on children under their care, they commit a criminal offence.
(ii) Upon arrest, a person has the right to be informed of the reasons for arrest (Section 28A of the CPC). The person is not obliged to say anything. However, the Court will later consider whether it should hold silence against him, when he could have denied the allegation or explained himself. This violates the right of silence, but many Courts have convicted people and imposed the death sentence for reasons that include, failure to explain oneself upon arrest. “If he was innocent, why did he not explain himself when he had the chance?” The Courts do not always do this and they would consider the circumstances of the arrest and the Accused person himself. This is hidden prejudice that we expect to be dispelled by experienced Judges. The evolution of the law concerning Alcontara Notice and willful blindness shows otherwise.
(iii) During the investigation, a person has the right to remain silent and not respond to all or some of the questions of the recording officer. However, in doing so he takes a risk, because he would be depriving himself of the benefit of his statement. It is not just a risk, it is a sure thing. Can you imagine how such statement would look before the trial and appellate judges? That the witness responded to some but not all the questions of the recording officer? As a prosecutor and defence counsel, I have come across a (thankfully) small number of statements saying, “I exercise my right to remain silent” or “I shall answer in Court”. Such valiance, misplaced valiance! I have also read this in advisory brochures in some legal/human rights organisations. In my humble view, this is a disservice. You will regret it, many months later during trial, that you did not have that nice piece of defence exhibited and marked D through the IO. We know the disadvantage of saying something you will regret later. But seriously, if you have to choose, please choose to say something. At least something – you can add qualifications like “subject to further verification of the facts – because they are in documents in my house and I have not seen them in a while”. Or “based only on the information given, which is X, Y and Z …” or “without the benefit of sighting A, B, C, I can only assume that …”. Always imagine how this would look before the trial and appellate judges. Always imagine whether your future testimony would be criticised as afterthought, after you have confirmed those things you qualified above. Always imagine, what if those informations you need verified or those documents you needed to refresh your mind, turned out negatively against you or positively. Once you have confirmed those facts that you qualified, you need to get it recorded in a further statement. Do not delay or else you can be questioned why you did not update the IO (even though it is not your duty to do so). I propose to discuss at another writing on how to get your further statement recorded if you or the recording officer blundered the first time.
(iv) If you are charged in court, the court will ask you to give your plea, whether you plead guilty or claim trial. If you remain silent, the trial will proceed. So remaining silent will not prevent the investigation, charge and trial from proceeding.
(v) If you are charged for a capital offence (death penalty), the Court will appoint a lawyer to defend you even if you remained silent and did not ask for one. This lawyer is called an assigned counsel. I am thankful and honoured to have been assigned to defend many capital cases from High Court to the Federal Court. All my clients expressed their appreciation for my service. Except one gentleman. He went to the forest to collect firewood with his stepson and a labourer. His stepson pooped in the car. He beat the boy to death, and kicked him with steel-toe boots. This was witnessed by the labourer, and corroborated by over 70 injuries on the boy’s small body. This happened at an oil palm estate near Kg Solok Pinang Gadek, Alor Gajah in Malacca. The expert witness testified he suffered from bipolar disorder and during the time that his disorder was triggered, he would be medically insane. The Court of Appeal heard my arguments but they applied the principle that it was not bound by any medical finding but must consider whether he was legally insane. His conviction was upheld and he was sentenced to death. It was tough getting instructions from him because he kept saying he wanted to die and that he did not want to appeal. He rejected the entire proceedings. I explained the situation to him, but he would not compute. Then he instructed me to inform the court that he did not want to appeal and he did not want to be represented by counsel. By then I had filed my submissions for his benefit. The existence of his notice of appeal with his thumbprint convinced me he wanted to appeal. Obliging him, I informed Her Ladyship Dato’ Tengku Maimun Tuan Mat (now Tun, our Chief Justice) that he is appealing against his will and that he did not want to be represented. I sought directions from the Bench, since I was assigned to him by them. Her Ladyship proceeded to hear and dispose the matter. So much for remaining silent, this gentleman even protested. But I am assuming that the Court considered him fit to proceed.
(vi) You can remain silent throughout the trial and not cross examine any of the Prosecution witnesses. This is playing a dangerous game because the law assumes that you accept the evidence if you do not challenge it. You can still rely on the rule that your silence does not relieve the Prosecution of its duty to prove its case beyond a reasonable doubt. But it is extremely dangerous to do so.
(vii) If the Court finds that a prima facie case has been proven, the Court shall call on you to enter your defence. The Court must explain the 3 elections to you. If you remain silent, then the Court assumes that you have elected to remain silent.
(viii) If the Accused remained silent and did not offer further evidence, the Court does not review the entire case again. In a practical sense, remaining silent entails automatic conviction. The late Karpal Singh challenged this – that if remaining silent entailed automatic conviction, it denied remaining silent as an actual right.
DOCTRINE OF AFTERTHOUGHT : CONTRAVENTION OF THE RIGHT OF SILENCE, OR PUNISHMENT FOR IMPRUDENCE OF THE DEFENCE?
These last few decades, the doctrine of afterthought has evolved quite a bit, against the defence. I have mentioned elsewhere that the Court expects the Accused to explain himself or disclose his defence, at least part of it, progressively earlier (but I do not consider that “progress”). This progressively eats into your right to remain silent, until such right becomes meaningless.
When I served as a prosecutor, I could say that over half of all trials I handled involved some element of afterthought in the defence. Confidently, I could say that a minority of trials had no afterthought. Afterthought was not hard to find. Afterthought was the spice that made my attack on the defence, delicious. Rightly or not, I submitted as though the defence, or just that part of the defence, was afterthought because they made it up. I used to wonder why afterthought defence were so commonplace. I considered myself as espousing some humanitarian, sympathetic perspectives, but that was nowhere near what I know now as a full time defence counsel. Now I know better why defences appear like they do. But more on that another time.
DEPRIVATION OF THE RIGHT TO SILENCE
Effectively, the right to remain silent is illusory because your silence is held against you. On paper, according to the plain letter of the law, it is not. But the judgments and in day-to-day practice it is. This is an onerous burden because the duty to disclose (i.e. to not remain silent) begins at a time when persons are least likely to have a lawyer with them. I have represented many accused persons who naively followed whatever the police told them to do and gave up whatever the police asked of them, without the slightest thought that they would be arrested and charged. What happened is, my clients voluntarily appeared at the IO’s office or at some other site, but all the arrest reports showed that my clients were arrested on some random roadside by a squad of detectives!
Just so that I don’t forget if you ask me someday, these are some caricatures:
a. A sciences lecturer (clean record)
b. A mathematics teacher (clean record)
c. A school principal (clean record with numerous departmental awards)
d. A kindergarten teacher (clean record)
e. A Chief Operations Officer (clean record)
f. The finance manager of an NGO and her husband, a businessman (both clean record)
g. A court interpreter (with discipline record but no criminal record)
h. A bank counter staff (clean record)
I would like to discuss this observation in greater depth another time. There is an interesting criminological / demographic observation that I would like to make out these cases.
All the above are good chaps, regular people like you and me, not career criminals. All of them were called to the IO’s office or to some other location. None of them thought they would be arrested. They thought they assisted with the investigations. All of them were arrested, all of them were charged. Almost all of their arrest reports (all except maybe one or two) showed that they were arrested by a team of half a dozen or more policemen from a random roadside.
Did any of these “typical good folk” know their legal right to remain silent, or that they had a duty to disclose upon arrest? No. Since they did not know their rights, should disclosure or non disclosure be held against them? No. But, is it held against them? Yes.
To be fair, in some of these cases the police did tell them the reason for their arrest and did provide Section 28A CPC forms. But a lot of them did not. None of the police officers complied with the requirement under Section 28A to allow them to contact a relative or lawyer before their statement was recorded, except for the sciences lecturer. In his case, he was right next to the IO who was in the midst of recording his statement when he called. I took the opportunity and asked to speak to her, which I did. She chuckled and remarked that my name sounded like Ernie Zakri. Bad timing, Inspector.
HOW DOES INFRINGING THE RIGHT TO REMAIN SILENT HURT THE PEOPLE?
a. It convolutes our jurisprudence, perpetuating a distorted picture of how a reasonable person should behave when under arrest or under investigation.
b. It encourages intelligent criminal individuals and organized criminal groups to rehearse arrests and prepare perfect defences and silence witnesses. With or without legal advice. The present weaknesses in the system favours these types at the expense of typical people.
c. It disproportionately affects people with clean records who “tergelincir” into committing an actual offence. In the vast majority of the cases I handled which involved people like this, they never thought they would benefit from legal advice (the Malaysian Bar should look into this). They thought they could trust the police fully with their lives and liberty.
d. Failure of the Courts to penalize police for noncompliance with Section 28A of the CPC, causes the police to ignore it outright and perpetuate the problem.
e. In the context of Section 27 of the Evidence Act 1950, read with Section 8 of the same Act, the police can use the physical body of the suspect as a straw man and connect the pieces of the crime to him, even though he is unrelated to them. The best he can do is disclaim knowledge or deny them, which is seen as “bare denial” by the Courts and results in conviction when the Accused fails to obtain affirmative evidence to rebut it (i.e. in a practical sense, requiring him to “prove his innocence”).
f. In the long run, the philosophy of the criminal justice system is turned upside down where it is the Accused who must prove his innocence. This is essentially what happens when his silence is penalized.
g. Silence is equated with concealment and acknowledgment. If our common law continues on this path, silence could be used to contradict the defence, not merely cause afterthought. This is because Courts assume that suspects understand what is going on at the time of arrest/investigation and they have the capability to comprehend and formulate and answer. This signals the untimely death of the right against self-incrimination.
For the above reasons, I am presently contemplating, and thinking, whether fully video and audio recorded raids and confessions should be produced in all trials, and any failure to produce such recordings (whether due to lack of batteries, corrupted date, misplaced camera, or whatever negligence) be held against the police. Video recording, a meaningful, and full recording not one where the camera is shaking all the time or only pointed to the ground or some irrelevant angle, should be as essential to a police raid as a pair of police pants.
CONDUCT OF LAW ENFORCEMENT SENDS THE WRONG MESSAGE TO THE PEOPLE
Do you know what the police are teaching our people? That it does not pay to be altruistic or forthright. In the present practice, it is not rewarding to stick your neck out. Protection for whistleblowers is still poor and does not meet the lofty ideals behind the protection for whistleblowers under the United Nations Convention Against Corruption (which lead to the enactment of our Whistleblower Protection Act 2010, which is concerned with all types of cases, not only corruption).
Even the way statements are recorded is unsatisfactory in content and method.
Do you know what some of the Court judgments are teaching our people? I cannot put in print what I really think.
Therefore, I am asking you, you meaning our good police officers, you meaning our hard working prosecutors who love our country, and Your Lordships and Ladyships, our astute judges who defend the Constitution. I implore you to inject some moderation into the administration of criminal procedure and criminal law, so that it does not continue on this unsafe trajectory. You have the advantage because you have the police powers, prosecutorial powers and judicial power. Do not complain if Parliament takes away these advantages someday. I want you to have these advantages as much as the next citizen wants you to have these advantages, because we need to protect ourselves, our loved ones and our property from criminals. But administer the law with moderation and temperance, please. Failing which, I will oppose every attempt that you abridge the constitutional and natural rights of all citizens and non-citizens in this country.
As the Prosecution’s evidence is already on record by the end of its case, if defence is called it basically means that the Court has believed and accepted the Prosecution’s evidence and rejected or KIV the suggestions put forward by the Defence, or the exhibits put forward and marked as IDD or even D. Worse, the Court would have made all kinds of inferences by the time it concluded that a prima facie case was proved.
So by the time the Accused is called to speak, for the first time since his plea was taken, he is facing a fortress.
As I have written elsewhere, in my humble view, the development of our common law has reached a stage where the battle is being fought earlier and earlier; not just at the Prosecution stage but during investigation and even at the time of arrest. There is even more reason for suspects under investigation to obtain legal advice instead of leaving their fate to the winds and asking mummy and daddy to find a lawyer only after they have been charged.
PROSECUTORS CAN CALL OR RECALL WITNESSES TO REBUT UNSWORN STATEMENTS
Prosecutors should not take their foot off the pedal once the Accused has announced their choice to give a statement from the dock. Go for the kill. Because the Defence is trying to survive with the little room and little oxygen they have left.
Prosecutors should be aware that the Defence may still call other witnesses. So get a confirmation from your opponent (through the Court of course), before proceeding further. Furthermore, the Prosecution should be alert of any challenges that the Accused makes in their unsworn statement. In that one case this year that my client gave an unsworn statement, he stated clearly some challenges to the Prosecution, things that the Prosecution has not proved.
In the right circumstances, to bury any doubt, the Prosecution may consider recalling witnesses or calling new rebuttal witnesses to seal the deal. I have not yet seen the Prosecution do this in any of the trials I handled, but I have taken over just one or two appeals where it rebuttal witnesses were called by the DPP during trial. I think you should do this too. Do this and it can help the DPP handling the matter on appeal.
The obvious risks are:
a. You are handing the Defence Counsel another opportunity to cross examine your rebuttal witness and put the defence case to it. The Defence would have been waiting for such opportunity because they are often already cornered at that stage.
b. Up to that point, the DPP has challenged the Accused in cross examination (if he testified on oath). Maybe it is better to “let sleeping dogs lie” than to spoil what you have achieved up to that point?
CLOSING POINTS
Against the State, you would be fighting for your life and liberty. Choose your weapons and defences wisely. If you choose the wrong tools or if you do not use them correctly, your mistake will harm your chances of winning you case.
The criminal justice system is not just about the Accused or the Victim. The Courts, the police, the Prosecution and the Defence, we are all in this together. Criminal justice is not merely a contest between public interest versus individual rights. That is binary thinking best shelved with those blue folders we used to collect from ILKAP courses. You see, any one of those individuals that you consider OKTs or suspects or criminals, any one of those persons can be you some day or your loved ones or even your subordinates and superiors. What is the public except that is a collection of all individuals? Therefore the individual rights should not be viewed with suspicion or that it is predominantly self-interested. Individual rights is about survival. And part of the public interest that you uphold, also includes the individual rights.
[1] Robert Popper, History and Development of the Accused’s Right to Testify, 1962 WASH. U. L. Q. 454 (1962)