§ 258 — Admissibility of accused’s statements

258.—(1) Subject to subsections (2) and (3), where any person is charged with an offence, any statement made by the person, whether it is oral or in writing, made at any time, whether before or after the person is charged and whether or not in the course of any investigation carried out by any law enforcement agency, is admissible in evidence at the person’s trial; and if that person tenders himself or herself as a witness, any such statement may be used in cross‑examination and for the purpose of impeaching that person’s credit.(2) Where a statement mentioned in subsection (1) is made by any person to a police officer, no such statement may be used in evidence if it is made to a police officer below the rank of sergeant.

(3) The court must refuse to admit the statement of an accused or allow it to be used in the manner referred to in subsection (1) if the making of the statement appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused grounds which would appear to the accused reasonable for supposing that by making the statement the accused would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against the accused. Explanation 1 — If a statement is obtained from an accused by a person in authority who had acted in such a manner that his or her acts tend to sap and have in fact sapped the free will of the maker of the statement, and the court is of the opinion that such acts gave the accused grounds which would appear to the accused reasonable for supposing that by making the statement, the accused would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against the accused, such acts will amount to a threat, an inducement or a promise (as the case may be), which will render the statement inadmissible.

Explanation 2 — If a statement is otherwise admissible, it will not be rendered inadmissible merely because it was made in any of the following circumstances:

(a)

under a promise of secrecy, or in consequence of a deception practised on the accused for the purpose of obtaining it;

(aa)

where the accused is informed in writing by a person in authority of the circumstances in section 33B of the Misuse of Drugs Act 1973 under which life imprisonment may be imposed in lieu of death;

(b)

when the accused was intoxicated;

(c)

in answer to questions which the accused need not have answered whatever may have been the form of those questions;

(d)

where the accused was not warned that the accused was not bound to make the statement and that evidence of it might be given against the accused;

(e)

where the recording officer or the interpreter of an accused’s statement recorded under section 22 or 23 did not fully comply with that section; or

(f)

where an accused’s statement under section 22 or 23 is in writing, when section 22(5) or 23(3B) (as the case may be) requires the statement to be recorded in the form of an audiovisual recording.

[30/2012; 19/2018]

(4) If the statement mentioned in subsection (3) is made after the impression caused by any such inducement, threat or promise mentioned in that subsection has, in the opinion of the court, been fully removed, it is admissible.

(4A) For the purposes of subsection (3), the making of a statement by an accused is not to be regarded as caused by any inducement, threat or promise merely because a person in authority had earlier informed the accused that the accused was required or legally bound to give information under section 27 of the Prevention of Corruption Act 1960, if that person believed in good faith, when so informing the accused, that —(a)

the accused was concerned in an offence under that Act; or

(b)

a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, that the accused was concerned in an offence under that Act.[19/2018]

(5) 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:(a)

all of those persons are tried jointly for the same offence;

(b)

the proof of the facts alleged in the charge for the offence for which one of those persons (A) is tried (excluding any fact relating to any intent or state of mind on the part of A necessary to constitute the offence for which A is tried) would, for each of the rest of those persons, result in the proof of the facts alleged in the charge for the offence for which that person is tried (excluding any fact relating to any intent or state of mind on the part of that person necessary to constitute the offence for which that person is tried);

(c)

at least one of those persons is tried for an offence under section 411, 412, 413 or 414 of the Penal Code 1871 in respect of any property, and the rest of those persons are tried for one or more of the offences of theft, extortion, robbery, criminal misappropriation, criminal breach of trust or cheating under Chapter 17 of the Penal Code 1871 in respect of the same property.[19/2018]

(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.[19/2018]

(5B) In subsection (5), “offence” includes an abetment of, a conspiracy to commit, or an attempt to commit, the offence.

Illustrations

(a)

A and B are jointly tried for the murder of C. It is proved that A said “B and I murdered C”. The court may consider the effect of this confession as against B.

(b)

A is on trial for the murder of C. There is evidence to show that C was murdered by A and B and that B said “A and I murdered C”. This statement may not be taken into consideration by the court against A as B is not being jointly tried.

(c)

A is charged with an offence of corruptly giving a gratification to B under section 5(b) of the Prevention of Corruption Act 1960. B is charged with an offence of corruptly receiving the same gratification from A under section 5(a) of the Prevention of Corruption Act 1960. A and B are jointly tried for those offences. If a confession made by A affecting both A and B is proved, and the same facts are alleged in the charges against A and B, the court may take into consideration the confession as against B, even though A and B are charged with offences that have different elements.

[19/2018]

(6) Despite any other provision in this section —(a)

where a person is charged with any offence in relation to the making or contents of any statement made by the person to any officer of a law enforcement agency in the course of any investigation carried out by the agency, that statement may be used as evidence in the prosecution;

(b)

any statement made by the accused in the course of an identification parade may be used as evidence; and

(c)

when any fact or thing is discovered in consequence of information received from a person accused of any offence in the custody of any officer of a law enforcement agency, so much of such information as relates distinctly to the fact or thing thereby discovered may be proved.

(7) In this section, “confession”, in relation to any person who is tried for an offence, means any statement made at any time by the person stating or suggesting the inference that the person committed that offence.

—(1) Subject to subsections (2) and (3), where any person is charged with an offence, any statement made by the person, whether it is oral or in writing, made at any time, whether before or after the person is charged and whether or not in the course of any investigation carried out by any law enforcement agency, is admissible in evidence at the person’s trial; and if that person tenders himself or herself as a witness, any such statement may be used in cross‑examination and for the purpose of impeaching that person’s credit.

(2) Where a statement mentioned in subsection (1) is made by any person to a police officer, no such statement may be used in evidence if it is made to a police officer below the rank of sergeant.

(3) The court must refuse to admit the statement of an accused or allow it to be used in the manner referred to in subsection (1) if the making of the statement appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused grounds which would appear to the accused reasonable for supposing that by making the statement the accused would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against the accused. Explanation 1 — If a statement is obtained from an accused by a person in authority who had acted in such a manner that his or her acts tend to sap and have in fact sapped the free will of the maker of the statement, and the court is of the opinion that such acts gave the accused grounds which would appear to the accused reasonable for supposing that by making the statement, the accused would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against the accused, such acts will amount to a threat, an inducement or a promise (as the case may be), which will render the statement inadmissible.

Explanation 2 — If a statement is otherwise admissible, it will not be rendered inadmissible merely because it was made in any of the following circumstances:

(a)

under a promise of secrecy, or in consequence of a deception practised on the accused for the purpose of obtaining it;

(aa)

where the accused is informed in writing by a person in authority of the circumstances in section 33B of the Misuse of Drugs Act 1973 under which life imprisonment may be imposed in lieu of death;

(b)

when the accused was intoxicated;

(c)

in answer to questions which the accused need not have answered whatever may have been the form of those questions;

(d)

where the accused was not warned that the accused was not bound to make the statement and that evidence of it might be given against the accused;

(e)

where the recording officer or the interpreter of an accused’s statement recorded under section 22 or 23 did not fully comply with that section; or

(f)

where an accused’s statement under section 22 or 23 is in writing, when section 22(5) or 23(3B) (as the case may be) requires the statement to be recorded in the form of an audiovisual recording.

[30/2012; 19/2018]

(4) If the statement mentioned in subsection (3) is made after the impression caused by any such inducement, threat or promise mentioned in that subsection has, in the opinion of the court, been fully removed, it is admissible.

(4A) For the purposes of subsection (3), the making of a statement by an accused is not to be regarded as caused by any inducement, threat or promise merely because a person in authority had earlier informed the accused that the accused was required or legally bound to give information under section 27 of the Prevention of Corruption Act 1960, if that person believed in good faith, when so informing the accused, that —(a)

the accused was concerned in an offence under that Act; or

(b)

a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, that the accused was concerned in an offence under that Act.[19/2018]

(5) 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:(a)

all of those persons are tried jointly for the same offence;

(b)

the proof of the facts alleged in the charge for the offence for which one of those persons (A) is tried (excluding any fact relating to any intent or state of mind on the part of A necessary to constitute the offence for which A is tried) would, for each of the rest of those persons, result in the proof of the facts alleged in the charge for the offence for which that person is tried (excluding any fact relating to any intent or state of mind on the part of that person necessary to constitute the offence for which that person is tried);

(c)

at least one of those persons is tried for an offence under section 411, 412, 413 or 414 of the Penal Code 1871 in respect of any property, and the rest of those persons are tried for one or more of the offences of theft, extortion, robbery, criminal misappropriation, criminal breach of trust or cheating under Chapter 17 of the Penal Code 1871 in respect of the same property.[19/2018]

(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.[19/2018]

(5B) In subsection (5), “offence” includes an abetment of, a conspiracy to commit, or an attempt to commit, the offence.

Illustrations

(a)

A and B are jointly tried for the murder of C. It is proved that A said “B and I murdered C”. The court may consider the effect of this confession as against B.

(b)

A is on trial for the murder of C. There is evidence to show that C was murdered by A and B and that B said “A and I murdered C”. This statement may not be taken into consideration by the court against A as B is not being jointly tried.

(c)

A is charged with an offence of corruptly giving a gratification to B under section 5(b) of the Prevention of Corruption Act 1960. B is charged with an offence of corruptly receiving the same gratification from A under section 5(a) of the Prevention of Corruption Act 1960. A and B are jointly tried for those offences. If a confession made by A affecting both A and B is proved, and the same facts are alleged in the charges against A and B, the court may take into consideration the confession as against B, even though A and B are charged with offences that have different elements.

[19/2018]

(6) Despite any other provision in this section —(a)

where a person is charged with any offence in relation to the making or contents of any statement made by the person to any officer of a law enforcement agency in the course of any investigation carried out by the agency, that statement may be used as evidence in the prosecution;

(b)

any statement made by the accused in the course of an identification parade may be used as evidence; and

(c)

when any fact or thing is discovered in consequence of information received from a person accused of any offence in the custody of any officer of a law enforcement agency, so much of such information as relates distinctly to the fact or thing thereby discovered may be proved.

(7) In this section, “confession”, in relation to any person who is tried for an offence, means any statement made at any time by the person stating or suggesting the inference that the person committed that offence.