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Dear Class,

The recent decision of the CA in Norasharee bin Gous v PP (see esp. [54]-[60]) was
delivered too late to be covered in my lecture. This is a note on some of the issues raised in or
by the judgment that you may want to think about.

1. Was this truly a case where the accused, Norasharee, was convicted solely on the basis of
the out-of-court confession of the co-accused, Yazik? Did Yazik not testify at the trial and
was he not cross-examined on his evidence? Did the court not used as evidence against
Norasharee both Yaziks previously recorded statements (admitted under s.258(5) and
his oral testimony, and indeed other evidence as well (eg, car park records at VivoCity)?
(Cf. Chin Seow Noi (elected to remain silent) and Lee Chez Kee (dead)). To what extent are
the concerns relating to the use of one accuseds confession against a co-accused mitigated in
such a situation?

2. Where, as in this case, the accused (whose statement is sought to be used by the
prosecution against a co-accused) himself testifies at the trial, is s.258(5) still an issue of
great moment? Consider the persuasiveness of this observation made by the CA in the earlier
case of Abdul Rashid bin Mohamed v PP [1993] 3 SLR(R) 656; [1993] SGCA 90 at [38]:

At the end of a trial, the correct approach is that the confession must be taken
together with the rest of the evidence in deciding on the totality of evidence whether
the Prosecution has proved the second appellants guilt beyond reasonable doubt.
However, in the present case, as the first appellant had given evidence which in
essence adopted the contents of his confession especially the parts that implicated the
second appellant, s 30 [now s.258(5)CPC] no longer became a live issue since the
learned trial judge in convicting the second appellant in fact relied on the sworn
testimony of the first appellant and not the out-of-court confession.

Should we be conflating the written confession with the oral testimony in the manner
suggested in this paragraph?

3. At [59] of the CA judgment in Norasharee bin Gouse v PP, it is stated:

In our view, Chin Seow Noi is correct in so far as it stands for the principle that X
may be convicted solely on Ys testimony. However, the foregoing discussion shows
that Ys confession has to be very compelling such that it can on its own satisfy the
court of Xs guilt beyond a reasonable doubt. In this regard, it would be relevant to
consider the state of mind and the incentive that Y might have in giving evidence
against X. If X alleges that Y has a motive to frame him, then this must be proved as a
fact (see Judgment at [28], citing Khoo Kwoon Hain v Public Prosecutor [1995]
2 SLR(R) 591). Of course, Y may well be truthful despite having an incentive to lie or
could be untruthful despite not having such an incentive.

Does the underlined portion in this passage suggests that the CA is laying down the principle
that the burden is on the accused to prove that the co-accused (whose statement is being used
against him) had no motive to frame him? If so, consider the following:

1
(a) Is this principle consistent with the first part of the above passage where it is
emphasized that Ys confession has to be very compelling such that it can on its own
satisfy the court of Xs guilt beyond reasonable doubt?

(b) In Khoo Kwoon Hain v PP, which is cited in the above passage, the HC appears to
take the opposite view on the burden of proof (ibid at [71]):
The burden of proving a lack of motive to falsely implicate the appellant is
on the Prosecution. Even though the Prosecution was making a negative
assertion, the burden of proof is still on it. It is not for the defendant to prove
that the complainant had some reason to falsely accuse him.

(c) Khoo Kwoon Hain was distinguished by the trial judge in the present case (ie, PP
v Mohamad Yazid bin Md Yusof) on this reasoning (at [28]):

Counsel for Norasharee relied on Khoo Kwoon Hain v Public


Prosecutor [1995] 2 SLR(R) 591 (Khoo Kwoon Hain) and submitted that
the Prosecution has the burden of proving that Yazid has no motive to falsely
implicate Norasharee and that the Prosecution failed to discharge this burden.
In my view, counsel misunderstood Khoo Kwoon Hains case. The court there
held that if the Prosecution wishes to convince the court that a witness has no
motive to falsely implicate the accused, the Prosecution has the burden of
proving that the witness has no such motive. In the present case it is the
Defence that asserts that a witness (Yazid) should not be believed because he
has a motive to lie to falsely implicate Norasharee. It is therefore the Defence
that has the burden of proving that the witness has such a motive: see s 105 of
the EA. He who asserts must prove that is a basic rule of evidence.

Do you agree with the trial judges reasoning?

(d) In this connection, consider s.116, illustration (b) which is mentioned in the trial
judgment but not in the CA judgment. It states: The court may presume (b) that
an accomplice is unworthy of credit and his evidence needs to be treated with
caution.

4. Yazik was given a certificate of substantive assistance by the Public Prosecutor. This
certificate enabled Yazik to avoid the death penalty which was otherwise mandatory (see
s.33B of the Misuse of Drugs Act). Was Yazik therefore offered a threat, inducement or
promise having reference to the charge as envisaged by the voluntariness test set out in
s.258(3) CPC? But see Explanation 2(aa) to s.258(3) CPC.

HHL
on behalf of the Evidence Team
17 March 2017

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