JUDGMENTBY: SPROULE, AG CJ, THORNE, J, TERRELL, J

SPROULE, AG CJ We delivered oral judgments in this case, but are invited to record our reasons for reproduction in the law reports.

We had to decide a point reserved by Stevens J. regarding the admissibility in evidence of a confession by the Accused. We held that it was inadmissible; but we refused to quash the conviction upon the ground that there was ample evidence to justify it, apart from the confession.

We rejected the confession because it was clearly not volunteered by the Accused, and was moreover vitiated by what amounted to unfriendly and improper cross-examination by the recording Magistrate.

Some years ago, in consequence of the decision of a Full Bench in a similar case heard in Penang, instructions and a form were carefully drafted for the guidance of Magistrates, and these are in the great majority of cases happily and scrupulously followed by Magistrates.

In the present case, however, sections 24 to 26 of the Evidence Ordinance, and section 123 and other relevant sections of the Criminal Procedure Code, as well as the instructions and form abovementioned, were all completely ignored by the recording Magistrate. He apparently preferred to go by the light of nature and such recollection as he retained of the principles relating to the recording of such statements by an accused person.

In case of homicide, and therefore of life and death, such neglect or defiance of rules laid down for the guidance of Magistrates is strongly to be deprecated.

In the result, the Magistrate in this case satisfied himself that the Prisoners statement was not induced by threat or coercion or promise of reward, and seems to have thought that no more was required of him. But it was his first duty to assure himself, that the statement to come was not only voluntary but also volunteered. How he interpreted that requirement of the law--if, indeed, it occurred to him; and his own record throws doubt upon that hypothesis--was to propound the unhappy question to the Prisoner, not, "Do you desire to make a statement?" but "Do you want to make a confession."

The Prisoner replied:

"I am in your hands. Anything you ask, I am prepared to answer.

Otherwise I say nothing."

That was, or should have been, the end of the matter, since it was quite clear that the Prisoner was not disposed to volunteer any statement, let alone a confession. He should have been sent away at once.

Our Magistrate, however, proceeded to examine and cross-examine him. The Prisoner answered voluntarily, and the Magistrate thought that was enough. He asked most improper questions as to the nature of the weapon used and the intention of the Prisoner, and so on.

In my opinion the only questions which may be lawfully propounded in such cases are those that tend merely to assist the Prisoner by making his meaning clearer; always presupposing that the statement is not only voluntary but volunteered.

For these reasons we all agreed in rejecting this statement as inadmissible in evidence.

THORNE, J The accused was convicted of the murder of one Thomas William Gunter at Wilkie Road, Singapore on the night of the 5th day of July 1931.

The matter came before the Court upon a question of law which had arisen in the course of his trial, and was reserved under Section 312 of the Criminal Procedure Code.

Counsel for the accused contended at the trial that a confession adduced in evidence was not admissible for the reason that it was elicited by a series of questions addressed to the accused by a magistrate.

This objection was overruled, and the confession admitted in evidence as Exhibit "D." The confession omits the memorandum required by Section 123 of the Criminal Procedure Code. but the magistrate who took the confession was called as a witness for the prosecution, so that the omission does not appear to be a matter of any importance.

Under the provisions of Section 26 of the Evidence Ordinance no confessio

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