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NURUL ATILIA BINTI MAT DERIS
LEB 120079
CORROBORATIONCORROBORATIONCORROBORATIONCORROBORATION
SectionSectionSectionSection ...
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Case:Case:Case:Case: BrabakaranBrabakaranBrabakaranBrabakaran vvvv PPPPPPPP
Corrob...
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LEB 120079
FormerFormerFormerFormer statementstatementstatementstatement underunderunderunder...
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Case:Case:Case:Case: LiewLiewLiewLiew WahWahWahWah MingMingMingMing vvvv PPPPPPPP
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LEB 120079
Corroboration:Corroboration:Corroboration:Corroboration: RuleRuleRuleRule ofofofof...
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ChildrenChildrenChildrenChildren (Sworn(Sworn(Sworn(Sworn andandandand UnswornUnsw...
NURUL ATILIA BINTI MAT DERIS
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RationaleRationaleRationaleRationale forforforfor corroborationcorroborationcorrob...
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Case:Case:Case:Case: SidekSidekSidekSidek binbinbinbin LudanLudanLudanLudan vvvv P...
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SwornSwornSwornSworn EvidenceEvidenceEvidenceEvidence
Rule of prudence applies, gi...
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ComplainantComplainantComplainantComplainant ofofofof SexualSexualSexualSexual Off...
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Case:Case:Case:Case: PPPPPPPP vvvv MardaiMardaiMardaiMardai
Whilst there is no rul...
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AccompliceAccompliceAccompliceAccomplice
SectionSectionSectionSection 133133133133...
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An accomplice and an agent provocateur is not one and the same! An accomplice will...
NURUL ATILIA BINTI MAT DERIS
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Case:Case:Case:Case: RRRR vvvv BaskervilleBaskervilleBaskervilleBaskerville
i. An ...
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Case:Case:Case:Case: NgNgNgNg KokKokKokKok LianLianLianLian vvvv PPPPPPPP
There ca...
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IdentificationIdentificationIdentificationIdentification CasesCasesCasesCases
In c...
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GuidelinesGuidelinesGuidelinesGuidelines ---- threethreethreethree stepsstepssteps...
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Case:Case:Case:Case: PPPPPPPP vvvv BasarBasarBasarBasar
It was clear from the evid...
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Case:Case:Case:Case: ChandranChandranChandranChandran a/la/la/la/l PaskaranPaskara...
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Law of Evidence - Corroboration

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Corroborative Evidence of Child Witness, Sexual Offences, Accomplice and Identification Cases

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Law of Evidence - Corroboration

  1. 1. NURUL ATILIA BINTI MAT DERIS LEB 120079 CORROBORATIONCORROBORATIONCORROBORATIONCORROBORATION SectionSectionSectionSection 134134134134 of the Evidence Act states that 'no particular number of witness shall in any case be required for the proof of any fact. The section enshrines the well-recognized maxim that "evidence has to be weighed and not counted." (AzizAzizAzizAziz binbinbinbin MuhamadMuhamadMuhamadMuhamad DinDinDinDin vvvv PublicPublicPublicPublic Prosecutor)Prosecutor)Prosecutor)Prosecutor) Case:Case:Case:Case: VadiveluVadiveluVadiveluVadivelu ThevarThevarThevarThevar vvvv StateStateStateState ofofofof MadrasMadrasMadrasMadras On a consideration of the relevant authorities and the provisions of the Act, the following propositions may be safely stated as firmly established: 1. As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. 2. Unless corroboration is insisted upon by statutes, courts should not insist on corroboration, except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for eg in the case of a child witness, or of a witness whose evidence is that of an accomplice. 3. Whether corroboration of the testimony of a single witness is or is not necessary must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends on judicial discretion. MeaningMeaningMeaningMeaning ofofofof CorroborationCorroborationCorroborationCorroboration Case:Case:Case:Case: DPPDPPDPPDPP vvvv HesterHesterHesterHester Corroboration is not a technical term. It simply means 'confirmation'. Case:Case:Case:Case: RRRR vvvv BaskervilleBaskervilleBaskervilleBaskerville Corroboration is independent testimony that affects the accused by connecting or tending to connect him with the crime. It must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that a crime has been committed, but also that the prisoner committed it. AugustineAugustineAugustineAugustine PaulPaulPaulPaul CJCJCJCJ inininin AzizAzizAzizAziz binbinbinbin MuhamadMuhamadMuhamadMuhamad Din,Din,Din,Din, The word 'implicate' does not necessarily mean 'incriminate' or 'inculpate, it may only mean 'involve'.
  2. 2. NURUL ATILIA BINTI MAT DERIS LEB 120079 Case:Case:Case:Case: BrabakaranBrabakaranBrabakaranBrabakaran vvvv PPPPPPPP Corroborative evidence is not necessarily restricted to the oral evidence of an independent witness. It may be circumstantial as well as direct. Case:Case:Case:Case: DoneyDoneyDoneyDoney vvvv RRRR Consistent with its role of confirming other evidence rather than amounting itself to evidence which necessarily leads to conviction, the corroborative evidence does not need to be proven beyond reasonable doubt. It must be noted that the question of corroboration does not arise unless the evidence of the witness requiring corroboration is itself credible. Case:Case:Case:Case: DPPDPPDPPDPP vvvv KilbourneKilbourneKilbourneKilbourne Corroboration is only required or afforded if the witness requiring corroboration or giving it is otherwise credible. If his evidence is not credible, a witness's testimony should be rejected and the accused acquitted, even if there could be found evidence capable of being corroboration in other testimony. Corroboration can only be afforded to or by a witness who is otherwise to be believed. If the witness' testimony falls of its own inanition the question of his needing, or being capable of giving corroboration does not arise. Case:Case:Case:Case: YapYapYapYap EeEeEeEe KongKongKongKong &&&& AnorAnorAnorAnor vvvv PPPPPPPP The essence of corroborative evidence is where one creditworthy witness confirmsconfirmsconfirmsconfirms what another creditworthy witness has said. WhatWhatWhatWhat amountsamountsamountsamounts totototo corroborationcorroborationcorroborationcorroboration MedicalMedicalMedicalMedical EvidenceEvidenceEvidenceEvidence Most of the time constitute as an independent testimony. Source come from another person other than complainant. The statement made - from examination conducted. To implicate, medical examination (the time lapse after the rape committed) CircumstantialCircumstantialCircumstantialCircumstantial EvidenceEvidenceEvidenceEvidence Circumstantial evidence is the evidence of relevant facts from which the existence or non-existence of facts in issue may be inferred. Amount to corroboration. (Brabakaran(Brabakaran(Brabakaran(Brabakaran case)case)case)case)
  3. 3. NURUL ATILIA BINTI MAT DERIS LEB 120079 FormerFormerFormerFormer statementstatementstatementstatement underunderunderunder SectionSectionSectionSection 157157157157 (Self-corroboration)(Self-corroboration)(Self-corroboration)(Self-corroboration) SectionSectionSectionSection 157157157157 ofofofof EvidenceEvidenceEvidenceEvidence ActActActAct In order to corroborate the testimony of a witness, any former statement made by him whether written or verbal, on oath, or in ordinary conversation, relatingrelatingrelatingrelating totototo thethethethe samesamesamesame factfactfactfact atatatat orororor aboutaboutaboutabout thethethethe samesamesamesame timetimetimetime whenwhenwhenwhen thethethethe factfactfactfact tooktooktooktook placeplaceplaceplace, or before any authority legally competent to investigate the fact, may be proved. IllustrationIllustrationIllustrationIllustration (j)(j)(j)(j) totototo SectionSectionSectionSection 8888 The question is whether A was ravished. The facts that shortly after the alleged rape she made a complaint relating to the crime, the circumstances under which and the terms in which the complaint was made are relevant. The words 'at'at'at'at orororor aboutaboutaboutabout thethethethe time'time'time'time' must mean that the statement must be made at once or at least shortly after when a reasonable opportunity making it present itself. The primary test is whether the statement was made as early as can reasonably be expected in the circumstances of the case and before there was opportunity for tutoring or concoction. Case:Case:Case:Case: PPPPPPPP vvvv TeoTeoTeoTeo EngEngEngEng ChanChanChanChan The expression 'at or about the time' is notnotnotnot limitedlimitedlimitedlimited inininin termstermstermsterms ofofofof hourshourshourshours andandandand daysdaysdaysdays. It is limited by the terms 'first'first'first'first reasonablereasonablereasonablereasonable opportunity'opportunity'opportunity'opportunity' or 'as'as'as'as speedilyspeedilyspeedilyspeedily asasasas couldcouldcouldcould bebebebe expected'expected'expected'expected' Four appellants were convicted of aggravated rape of a girl who was 16 years and 10 months old. Her statement to Dr Chua and her use of the Mandarin equivalent of 'gang rape' in that statement within 14 hours after the events are adequateadequateadequateadequate corroborationcorroborationcorroborationcorroboration. The number of hours is not by itself important. Her complaint was made as speedily as could reasonably in the circumstances be expected for her. Going much further other than merely showing consistency. Case:Case:Case:Case: KesavanKesavanKesavanKesavan SenderanSenderanSenderanSenderan vvvv PPPPPPPP S 157 is clear and unambigous and there can be no doubt that in the circumstances laid down in that section, former statement made by a witness is admissible to corroborate his testimony and with the object of showing consistency. But the weightweightweightweight orororor valuevaluevaluevalue of such a statement as corroboration must always be a question of fact.
  4. 4. NURUL ATILIA BINTI MAT DERIS LEB 120079 Case:Case:Case:Case: LiewLiewLiewLiew WahWahWahWah MingMingMingMing vvvv PPPPPPPP S157 - former statement made is admissible to corroborate his testimony and with the object of showing consistency. The weight of such a statement for the purpose of corroboration depends on the facts of a particular case, ie vary with the facts of each case. Case:Case:Case:Case: PPPPPPPP vvvv MuhammadMuhammadMuhammadMuhammad TerangTerangTerangTerang binbinbinbin AmitAmitAmitAmit It is abundantly clear that Whitehead's case could not be said to represent the correct statement of the law applicable to our country. As such, in this case the Mag must have misdirected himself when he rejected the evidence of the victims and parents of the victims who had complained to them of having been indecently assaulted by the accused by merely relying on the authority of that case. (as reasonably in the circumstances could be expected - the girls lived at the hostel) Case:Case:Case:Case: MohdMohdMohdMohd YusofYusofYusofYusof binbinbinbin RahmatRahmatRahmatRahmat vvvv PPPPPPPP Rape - 5 years old girl at the kindergarten operated by the accused. No corroboration - psychiatrist, the grandparents and aunt - testified and all the statements of alleged rape emanate from the victim. No prima facie case against the accused. Case:Case:Case:Case: KarthiyayaniKarthiyayaniKarthiyayaniKarthiyayani &&&& AnorAnorAnorAnor vvvv LeeLeeLeeLee LeongLeongLeongLeong SinSinSinSin The section adopts a contrary rule to English jurisprudence by enacting the former statement of a witness is admissible to corroborate him, if the former statement is consistent with the evidence given by him in court. The rule is based on the assumption that consistency of utterance is a ground for belief in the witness thruthfulness. Although it is admissible, but constitutes a very weak type of corroborative evidence as it tends to defeat the object of the rule that a person cannot corroborate himself. AzizAzizAzizAziz MuhamadMuhamadMuhamadMuhamad DinDinDinDin - Former statement (Not a source of independent, not a corroborative evidence as in Baskerville definition) LimLimLimLim GuanGuanGuanGuan EngEngEngEng - "Statement rendered admissible by s157 cannot be treated as corroboration of evidence given by the maker of the statement" - has the effect of amending or modifying S157! The Court may interpret and apply the section but cannot change what is stated in the section.
  5. 5. NURUL ATILIA BINTI MAT DERIS LEB 120079 Corroboration:Corroboration:Corroboration:Corroboration: RuleRuleRuleRule ofofofof LawLawLawLaw vsvsvsvs RuleRuleRuleRule ofofofof PrudencePrudencePrudencePrudence Generally in Malaysia, there is no specific rule of law that requires the evidence of a witness to be corroborated except in the case of the evidence of a child of tender years under SectionSectionSectionSection 133A133A133A133A. IfIfIfIf corroborationcorroborationcorroborationcorroboration isisisis requiredrequiredrequiredrequired asasasas aaaa mattermattermattermatter ofofofof lawlawlawlaw, corroboration is mandatory and conviction cannot stand unless the evidence is corroborated. In certain types of cases there is a rule of practice which requires evidence to be corroborated. This includes the evidence of a complainant in a case involving a sexual offence. Even in such cases a conviction based on uncorroborated evidence is not illegal. But the rule of practice regulates the manner in which uncorroborated evidence is to be treated, that is to say, the judge must warn himself of the dangers of convicting on such evidence. In saying that the warning must appear in the judgment or grounds of decision of the trial court though no particular form of words need to be used. Case:Case:Case:Case: NgNgNgNg YauYauYauYau ThaiThaiThaiThai vvvv PPPPPPPP The warning as to the danger of convicting on uncorroborated evidence if the prosecution is relying on the testimony of an accomplice does not involve some legalistic ritual to be automatically recited by the trial magistrate, or that some particular form of words or incantation be used and if not used, the judgment is deemed to be faulty and the conviction set aside. There is no magic formula and no set words which must be adopted to express the warning. Case:Case:Case:Case: ChiuChiuChiuChiu NangNangNangNang HongHongHongHong vvvv PPPPPPPP No particular form of words is necessary for this purpose: what is necessary is that the judge's mind upon the matter should be clearly revealed.
  6. 6. NURUL ATILIA BINTI MAT DERIS LEB 120079 ChildrenChildrenChildrenChildren (Sworn(Sworn(Sworn(Sworn andandandand UnswornUnswornUnswornUnsworn Testimony)Testimony)Testimony)Testimony) SectionSectionSectionSection 118118118118 ofofofof EvidenceEvidenceEvidenceEvidence ActActActAct ---- WhoWhoWhoWho maymaymaymay testifytestifytestifytestify All persons shall be competent to testify unless the Court considers thay they are prevented from (1)(1)(1)(1) understanding the questions put to them (2)(2)(2)(2) giving rational answers to those questions by reason of tender years, extreme old age, disease, or any other cause of the same kind. With respect to children of tender years, no precise age is fixed by law within which they are absolutely excluded from giving evidence on the presumption that they have not sufficient understanding. Neither can any precise rule be laid downrespecting the degree of intelligence and knowledge which will render a child a competent witness. SectionSectionSectionSection 8888 OathsOathsOathsOaths andandandand AffirmationAffirmationAffirmationAffirmation ActActActAct Any person of immatureimmatureimmatureimmature ageageageage who ought not be affirmed unable to take an oath can give evidence after a caution by the court to speak the truth, the whole truth and nothing but the truth. Case:Case:Case:Case: RRRR vvvv HayesHayesHayesHayes A child is considered competent to take the oath if she has sufficient appreciation of the solemnity of the occasion and the added responsibility to tell the truth which involved in taking the oath over and above the duty to tell the truth which is an ordinary duty of normal social conduct. SectionSectionSectionSection 133A133A133A133A ---- EvidenceEvidenceEvidenceEvidence ofofofof childchildchildchild ofofofof tendertendertendertender yearsyearsyearsyears This section deals with the evidence of child witnesses. It provides that where a child of tender years who is called as a witness does not, in the opinion of the court, understand the nature of an oath he may give unsworn evidence if the court is satisfied that he is possessed of sufficient intelligence to justify the reception of the evidence and understand the duty of speaking the truth. The proviso to the section states that where such evidence is given on behalf of the prosecution, the accused shall not be convicted of the offence unless that evidence is corroborated. This Section only applies to unsworn evidence. The law relating to the sworn evidence of a child is still governed by the rule of prudence.
  7. 7. NURUL ATILIA BINTI MAT DERIS LEB 120079 RationaleRationaleRationaleRationale forforforfor corroborationcorroborationcorroborationcorroboration ---- naturenaturenaturenature ofofofof thethethethe witnesswitnesswitnesswitness inininin thethethethe casecasecasecase ofofofof ChaoChaoChaoChao ChongChongChongChong vvvv PPPPPPPP One reason why children's evidence is regarded with suspicion is that there is always danger that a child may not fully understand the effect of taking on oath. Another reason, however, which in this country possesses undiminished force, is that it is a matter of common knowledge that children at times find it difficult to distinguish between reality and fantasy. They find it difficult after a lapse of time to distinguish between the results of observation and the results of imagination. Case:Case:Case:Case: TajudinTajudinTajudinTajudin binbinbinbin SallehSallehSallehSalleh vvvv PPPPPPPP Even though children normally do not have the temptation to take sides or speaks falsehood, their evidence need to be taken with great caution because at times, children can easily be influence by adults who have interest in the case. Case:Case:Case:Case: KesavanKesavanKesavanKesavan SenderanSenderanSenderanSenderan (Sworn(Sworn(Sworn(Sworn Evidence)Evidence)Evidence)Evidence) It is often said that children are prone to a fertile imagination. Children these days no longer, brought up on a reading diet of fairy tales, but seeing motion images before their eyes on tv or in the cinema, are much less active in imagination and more adept in describing what they perceive from their senses. It would be wrong therefore to reject summarily a child's testimony when there was no corroboration. It would be injustice to the child, whose faith in the system of justice and even in himself may well be destroyed. The court must consider the whole surrounding circumstances. The court must not simply dismiss his evidence but must go on to consider the evidence of that child witness with utmost care. If the court finds no reason why the child should not be believed, it may act upon his testimony even if there is no corroboration, provided of course it has at all times kept in mind the danger on acting on uncorroborated testimony alone. PreliminaryPreliminaryPreliminaryPreliminary InquiryInquiryInquiryInquiry ---- FedFedFedFed CourtCourtCourtCourt casecasecasecase ofofofof MuharamMuharamMuharamMuharam binbinbinbin AnsonAnsonAnsonAnson vvvv PPPPPPPP The witness was tentententen yearsyearsyearsyears oldoldoldold atatatat thethethethe timetimetimetime ofofofof thethethethe trial,trial,trial,trial, butbutbutbut sevensevensevenseven yearsyearsyearsyears atatatat thethethethe timetimetimetime ofofofof thethethethe incidentincidentincidentincident. The trial judge after holding the inquiry and having formed the opinion that although the child did not understand the nature of an oath, nevertheless he thought that she possessed sufficient intelligence to understand the duty of speaking the truth, allowed her to give evidence although unsworn.
  8. 8. NURUL ATILIA BINTI MAT DERIS LEB 120079 Case:Case:Case:Case: SidekSidekSidekSidek binbinbinbin LudanLudanLudanLudan vvvv PPPPPPPP The judge held that from the wording of Section 133A of the Act, the trial court is obligated by way of preliminarypreliminarypreliminarypreliminary examinationexaminationexaminationexamination to ascertain the child's capacity to understand and give rationale answers. This is because competencycompetencycompetencycompetency dependsdependsdependsdepends notnotnotnot onononon thethethethe ageageageage butbutbutbut uponuponuponupon hishishishis orororor herherherher understanding.understanding.understanding.understanding. (facts - atuk, cucu and ada eye-witnesses bagi sworn testimony) Differentiate sworn and unsworn. Effect of 133A is far reaching! Kena ada corroboration. Case:Case:Case:Case: YusainiYusainiYusainiYusaini MatMatMatMat AdamAdamAdamAdam When a child of tender years is to be called as a witness the procedure is for the court to hold a preliminary inquiry to form an opinion whether the child is in the position to be sworn. This is due to the fact that thethethethe competencycompetencycompetencycompetency ofofofof thethethethe childchildchildchild couldcouldcouldcould nevernevernevernever bebebebe presumedpresumedpresumedpresumed. The session court had convicted the accused for raping his stepdaughter who was then 10101010 yearsyearsyearsyears oldoldoldold andandandand 8888 monthsmonthsmonthsmonths butbutbutbut waswaswaswas 11111111 yearsyearsyearsyears oldoldoldold atatatat thethethethe timetimetimetime ofofofof trialtrialtrialtrial. Despite being a child of tender years, the court did not hold an inquiry to form an opinion on whether she was in a position to be sworn in accordance with the requirement of Section 133A. The Court allowed the appeal and set aside the conviction of rape on account for the failure of the trial judge to comply with the procedure under S 133A. Case:Case:Case:Case: MohdMohdMohdMohd AbdulAbdulAbdulAbdul KadirKadirKadirKadir vvvv PPPPPPPP In conducting the inquiry, the child should be asked few simple questions initially, and if needed, gradually, more difficult questions to be posed to him; for the purpose of determining his intelligence quality. If the result proved he had the intelligence quality to give evidence, he could be shown with document containing the prescribed form of oath. Following that the child should be asked if he understands the oath as shown to him. Depending on the answer, the magistrate should decide which form of evidence to be recorded from the child. If the child give an unsworn testimony, then Section 133A of the Act applies, his or her evidence must be corroborated. Case:Case:Case:Case: PPPPPPPP vvvv ChanChanChanChan WaiWaiWaiWai HengHengHengHeng It was clear from a scrutiny of the notes of evidence recorded by the sessions court judge that he had satisfied himself first that the child witness did not comprehend the oath and thereafter embarked on a process of ascertaining the child's level of understanding whether he is possessed of sufficient intelligent to justify the reception of the evidence and understand the duty of speaking the truth through some questions that were posed to him by the learned DPP.
  9. 9. NURUL ATILIA BINTI MAT DERIS LEB 120079 SwornSwornSwornSworn EvidenceEvidenceEvidenceEvidence Rule of prudence applies, give exhaustive warning on the danger of convicting the accused based on uncorroborated evidence of the child. Warning is mandatorymandatorymandatorymandatory, must be reflected in the judgment. If no warning, conviction can be set aside. Case:Case:Case:Case: PPPPPPPP vvvv MohammadMohammadMohammadMohammad TerangTerangTerangTerang binbinbinbin AmitAmitAmitAmit Cited case of DPP v Hester, if there are two or more children giving unsworn evidence to the same effect, the accused still cannot be convicted unless there is some other evidence corroborating their testimony. Unsworn + unsworn = no corroboration!
  10. 10. NURUL ATILIA BINTI MAT DERIS LEB 120079 ComplainantComplainantComplainantComplainant ofofofof SexualSexualSexualSexual OffencesOffencesOffencesOffences As a matter of practice and prudence, not of law, corroboration is normally required in sexual offence. When corroboration is dispensed with, and the complainant's evidence is accepted as having established the case against the accused, the judge as a matter of law is required to warn himself of the danger of convicting on the uncorroborated evidence of the complainant. RationaleRationaleRationaleRationale forforforfor requirementrequirementrequirementrequirement ofofofof corroborationcorroborationcorroborationcorroboration (Case:(Case:(Case:(Case: DinDinDinDin vvvv PP)PP)PP)PP) The desirability for corroboration of the evidence of the prosecutrix in a rape case springs not from the nature of the witness but from the nature of the offence. The temptation of a woman to exaggerate an act of sexual connection are well-known and manifold?? This is dangerous because human experience has shown that in these courts girls and womans do sometimes tell on entirely false story which is very easy to fabricate but extremely difficult to refute. Such stories are fabricated for all sorts of reasons and sometimes no reasons at all. Danger - false accusation owing to sexual neurosis, jealousy, spite or a girl's refusal to admit that she consented to an act which she is now ashamed. Nature of the offence - easy to allege but very difficult to prove! Case:Case:Case:Case: ChiuChiuChiuChiu NanNanNanNan HongHongHongHong Where the judge had in mind of convicting without corroboration nevertheless decided to do so, he should make it clear that he has the risk of convicting without corroboration in his mind but decided to convict as he is satisfied beyond reasonable doubt. No particular forms of word is necessary; but what is necessary is that the judge's mind upon the matter should be clearly revealed. Case:Case:Case:Case: Dato'Dato'Dato'Dato' SeriSeriSeriSeri AnwarAnwarAnwarAnwar IbrahimIbrahimIbrahimIbrahim The requirement of corroboration in cases of sexual offences also applies where the victim is a male.
  11. 11. NURUL ATILIA BINTI MAT DERIS LEB 120079 Case:Case:Case:Case: PPPPPPPP vvvv MardaiMardaiMardaiMardai Whilst there is no rule of law in this country that in sexual offences the evidence of the complainant but be corroborated, nevertheless...as a matter of common sense, to be unsafe to convict in cases of this kind unless either the evidence of the complainant is unusuallyunusuallyunusuallyunusually convincingconvincingconvincingconvincing or there is some corroboration of the complainant's story. It would be sufficient, in my view, if that corroboration consisted only of a subsequent complaint by the complainant herself provided the statement implicated the accused and was made at the first reasonable opportunity after the commission of the offence. TheTheTheThe 'unusually'unusually'unusually'unusually convincingconvincingconvincingconvincing test'test'test'test' waswaswaswas explainedexplainedexplainedexplained inininin thethethethe casecasecasecase ofofofof PPPPPPPP vvvv MohammedMohammedMohammedMohammed LitonLitonLitonLiton ..testimony that, when weighed against the overall backdrop of the available facts and circumstances, contains that ring of truth which leaves the court satisfied that no reasonable doubt exists in favour of the accused. Case:Case:Case:Case: RungitRungitRungitRungit SinghSinghSinghSingh Read and understand. Case:Case:Case:Case: ZukiZukiZukiZuki binbinbinbin MohdMohdMohdMohd vvvv PPPPPPPP There was no reasonable explanation from the claimant as to why she took about six weeks or 44 days to lodge a police report. Further, the conduct of the claimant and the accused after the date of the incident ie going out together to the night market, if taken into account was more consistent with sexual intercouse allegedly with consent whereby claimant was 17 years old at the time of the incident and there was no offence of statutory rape/rape. Medical evidence - consent. Although law does not require that corroboration need to be established, however, according to the practice and prudence that corroboration was desirable in sexual offences especially where the complaint was not done within the reasonable period or at the first available opportunity by the claimant after the incident. Prosecution has failed to establish prima facie case, conviction set aside. Accused was acquitted.
  12. 12. NURUL ATILIA BINTI MAT DERIS LEB 120079 AccompliceAccompliceAccompliceAccomplice SectionSectionSectionSection 133133133133 ofofofof thethethethe EAEAEAEA An accomplice is a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. IllustrationIllustrationIllustrationIllustration (b)(b)(b)(b) totototo SectionSectionSectionSection 114114114114 The court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. MeaningMeaningMeaningMeaning ofofofof anananan accompliceaccompliceaccompliceaccomplice The meaning of accomplice is not defined in the Act. However, the popular meaning is that an accomplice is a guilty associate of the accuseed person or a partner in the crime. Case:Case:Case:Case: DaviesDaviesDaviesDavies vvvv PPPPPPPP Person who, if called as witness are accomplices: i. Person who were participates criminis in respect of the actual crime charge (aiding or abetting) ii. Receivers of stolen property iii. Persons involved in other offences held to be admissible in relation to the offence charged. Case:Case:Case:Case: HarcharanHarcharanHarcharanHarcharan SinghSinghSinghSingh &&&& AnorAnorAnorAnor vvvv PPPPPPPP (COA)(COA)(COA)(COA) An accessory after the fact could not be an accomplice as he is not concerned in the commission of the original offence. The question of whether an accessory after the fact is an accomplice is academic as his evidence be considered on the same principles as that of an accomplice. Where he has played an active role his evidence must be corroborated. On the other hand, if his role has been passive his evidence may be accepted with the usual corroboration warning. The role played by PW9 is active role and his evidence requires to be corroborated. In absence of such evidence, there was no evidence on which the defence could have been called. Case:Case:Case:Case: LawrenceLawrenceLawrenceLawrence MasuniMasuniMasuniMasuni An accessory after the fact cannot be an accomplice as he is not concerned in the commission of the original offence.
  13. 13. NURUL ATILIA BINTI MAT DERIS LEB 120079 An accomplice and an agent provocateur is not one and the same! An accomplice will have nexus to mens rea in relation to the offence. The mens rea will be absent for agent provocateur ---- TejaTejaTejaTeja SinghSinghSinghSingh Case:Case:Case:Case: SarjeetSarjeetSarjeetSarjeet SinghSinghSinghSingh vvvv PPPPPPPP Although S133 of the Act stipulates that a conviction is not illegal merely because it proceeds upon uncorroborated testimony of an accomplice, the courts have consistently held that the grounds of decision must reflect an awareness of the danger of so convicting. The main justification for the need for corroboration of an accomplice is - that he has a motive of his own as he will minimise his role and maximise others role in the crime. As in the case of SarjeetSarjeetSarjeetSarjeet Singh.Singh.Singh.Singh. Case:Case:Case:Case: TanTanTanTan SeeSeeSeeSee BoonBoonBoonBoon vvvv PPPPPPPP ..an accomplice is an infamous perons and as such not deserving of belief. He has an obvious interest in diverting blame from himself to the person against whom he testifies. He also has an obvious interest in currying favour with the authorities in whose hands his own fate lies and by reason of his knowledge as an accomplice, he is in a peculiarly favourable position to concoct plausible false evidence. Case:Case:Case:Case: BhudonsiBhudonsiBhudonsiBhudonsi SahuSahuSahuSahu vvvv TheTheTheThe KingKingKingKing The danger of acting on accomplice evidence is that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates and who has placed himself in a position in which he can hardly fail to have a strong bias in favor of the prosecution. The real danger is that he is telling a story which in its general outline is true and it is easy for him to work into the story which is untrue. Case:Case:Case:Case: PPPPPPPP vvvv MohdMohdMohdMohd AzamAzamAzamAzam binbinbinbin BasironBasironBasironBasiron The court observed that when dealing with evidence of an accomplice, the need for corroboration arise from the nature of witness who is somebody who may have an interest in making out the guilt of another in preference of his own and it must therefore be received with greatest possible caution.
  14. 14. NURUL ATILIA BINTI MAT DERIS LEB 120079 Case:Case:Case:Case: RRRR vvvv BaskervilleBaskervilleBaskervilleBaskerville i. An accomplice is a competent witness ii. As a matter of law a conviction based upon the uncorroborated testimony of an accomplice would be legal but as a matter of practice and prudence courts have invariably insisted that the testimony of an accomplice should be corroborated in material particulars before a decision can be based upon such testimony. iii. This rule of practice, has acquired the force of rule of law iv. Corroboration is not required in every detail but should be present with regards to material particulars v. Corroboration must come from an independent and reliable source so that one accomplice cannot corroborate another accomplice. Case:Case:Case:Case: AttanAttanAttanAttan AbAbAbAb GhaniGhaniGhaniGhani Summarized the corroboration rules as (1)(1)(1)(1) there must be some additional evidence rendering it probable that the story of the complainant is true and that it is reasonably safe to act upon it; (2)(2)(2)(2) the evidence must come from independent sources; and (3)(3)(3)(3) it must implicate the accused in the material particular. It confirms the accused committed the crime. Case:Case:Case:Case: LimLimLimLim YamYamYamYam HongHongHongHong vvvv PPPPPPPP S133 lays down the strict rule of law according to which it is perfectly legal to convict the accused solely on the uncorroborated testimony of an accomplice. The rule of prudence, however stated in illustration (b) to S114. This rule of practice not that corroboration is essential before there can be a conviction by that the necessity of corroboration as a matter of prudence must be present in the mind of the judge except where the circumstances make it safe to dispense with corroboration. Being aware of this principle, if the judge chooses to convict the accused based on the uncorroborated testimony of an accomplice, the conviction is perfectly legal! In such a case, it is necessary that the judge should give some indication in his judgment that he has had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case and show why he considers it is safe to convict without corroboration.
  15. 15. NURUL ATILIA BINTI MAT DERIS LEB 120079 Case:Case:Case:Case: NgNgNgNg KokKokKokKok LianLianLianLian vvvv PPPPPPPP There can be no automatic application of the rule as to the accomplice's evidence to any witness nor could a witness be prima facie an accomplice without first examining his evidence to find out whether he is an accomplice or not; least of all to be held an accomplice just because money was given to him or because he received it. (in this case dia tak gunakan the money so no mens rea) Case:Case:Case:Case: NgNgNgNg YauYauYauYau ThaiThaiThaiThai vvvv PPPPPPPP Because they were accomplices, the Court may presume under Section 114, illustration (b) of the EA that their evidence is unworthy of credit unless they are corroborated in material particulars. Then the Mag refer to the provision of S 133 of the EA an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The trial Mag stated that she accepted the evidence of the accomplices and gave reaason that there is no reason for them to tell lies in Court. On the other hand if they tell the truth they themselves stand to lose bcs they would be ordered to return the baby. Case:Case:Case:Case: PPPPPPPP vvvv MohdMohdMohdMohd JamilJamilJamilJamil binbinbinbin YahyaYahyaYahyaYahya &&&& AnorAnorAnorAnor Read and understand - drug cases, dead person is an accomplice Case:Case:Case:Case: MahmudMahmudMahmudMahmud JamiliJamiliJamiliJamili binbinbinbin ZaudinZaudinZaudinZaudin vvvv PPPPPPPP The evidence of one accomplice cannot be used to corroborate the evidence of another accomplice. Case:Case:Case:Case: PPPPPPPP vvvv DatoDatoDatoDato SeriSeriSeriSeri AnwarAnwarAnwarAnwar IbrahimIbrahimIbrahimIbrahim One of the factors is the degree of complicity of the accomplice. This is driven by the fact that in some cases, the accomplice may no willingly participate in the offence but acted under a certain form of pressure. Case:Case:Case:Case: PPPPPPPP vvvv NorezamNorezamNorezamNorezam ApandyApandyApandyApandy The distinction is drawn by the Court between an accomplice who played an active role and a passive role. The former require corroboration while the latter's evidence may be accepted with the corroboration warning being administered.
  16. 16. NURUL ATILIA BINTI MAT DERIS LEB 120079 IdentificationIdentificationIdentificationIdentification CasesCasesCasesCases In cases where the prosecution's case is based wholly or substantially on mere identification by a witness of the accused, the judge must caution himself before convicting the accused according to the Turnbull guidelines. Case:Case:Case:Case: RRRR vvvv TurnbullTurnbullTurnbullTurnbull The principal witness on identity, was a DetDetDetDet ConConConCon SmithSmithSmithSmith. He gave evidence that on the relevant night he went to the car park at the rear of the police station and drove into the main road to which reference has been made and along it towards the bank. As he did so, and at a point which it was agreed was somesomesomesome 62626262 yardsyardsyardsyards fromfromfromfrom thethethethe frontfrontfrontfront doordoordoordoor ofofofof thethethethe bank,bank,bank,bank, DetDetDetDet ConConConCon SmithSmithSmithSmith saidsaidsaidsaid thatthatthatthat hehehehe sawsawsawsaw aaaa manmanmanman inininin thatthatthatthat doorwaydoorwaydoorwaydoorway who seemed to be taking a notice from the door of the bank. At the time Det Con Smith's car was just passing the bank, some ten yards or so from the night safe and Det Con Smith's evidence was that asasasas thethethethe manmanmanman turnedturnedturnedturned hishishishis headheadheadhead hehehehe (Smith)(Smith)(Smith)(Smith) recognisedrecognisedrecognisedrecognised himhimhimhim andandandand recognisedrecognisedrecognisedrecognised himhimhimhim asasasas Turnbull.Turnbull.Turnbull.Turnbull. The latter was a man whom the officer had known for some time. Det Con Smith said that it was a well-litwell-litwell-litwell-lit streetstreetstreetstreet andandandand thatthatthatthat hehehehe hadhadhadhad nononono difficultydifficultydifficultydifficulty inininin recognisingrecognisingrecognisingrecognising Turnbull.Turnbull.Turnbull.Turnbull. Very shortly after this, Smith saw two men run from the side road into the main road and recognised one of them as Det Sgt Wakenshaw. The case against both Turnbull and Camelo of course rested principally on Det Con Smith's evidence of his identification of Turnbull. On the question of the correctness of the identification, thethethethe learnedlearnedlearnedlearned judgejudgejudgejudge diddiddiddid warnwarnwarnwarn thethethethe juryjuryjuryjury ofofofof thethethethe specialspecialspecialspecial needneedneedneed forforforfor cautioncautioncautioncaution andandandand alsoalsoalsoalso explainedexplainedexplainedexplained totototo themthemthemthem thethethethe reasonreasonreasonreason forforforfor thisthisthisthis. In the circumstances of the present case, however, and seeking to apply the general principles to which we have referred, he contended that there was ample other evidence which went to support the correctness of Det Con Smith's identification. He pointed out that Det Con Smith already knew Turnbull and that his was more recognition than mere identification. Both Det Con Smith and Mr Alderson gave a general description of the man they each saw and of the coat which he was wearing that night which was consistent with the facts. A van recently hired by Camelo was in the vicinity at the relevant time and Det Sgt Wakenshaw had recognised Camelo at the wheel as the van passed the bank. A few minutes later, when the van was stopped a mile or so away, both Camelo and Turnbull were in it and there was substantial evidence that at about that time the latter at least had been in possession of housebreaking implements.
  17. 17. NURUL ATILIA BINTI MAT DERIS LEB 120079 GuidelinesGuidelinesGuidelinesGuidelines ---- threethreethreethree stepsstepsstepssteps The first question which a judge should ask when there is identification evidence is whether the case against the accused depends wholly or substantially on the correctness of the identification evidence which is alleged by the defence to be mistaken. If so, the second question is whether the identification evidence is of good quality, taking into account the circumstances in which the identification by the witness was made. Where the quality of the identification evidence is poor, the judge should go on to ask the third question ie whether is there any other evidence which goes to support the correctness of the identification. If the judge is unable to find other supporting evidence for the identification evidence, he should be mindful that a conviction which relies on such poor identification evidence would be unsafe. Case:Case:Case:Case: LowLowLowLow KianKianKianKian BoonBoonBoonBoon &&&& AnorAnorAnorAnor vvvv PPPPPPPP Where the quality of the identification evidence is poor, the judge should go on to ask the third question. Is there any other evidence which goes to support the correctness of the identification? If the judge is unable to find other supporting evidence for the identification evidence, he should then be mindful that a conviction which relies on such poor identification evidence would be unsafe. The supporting evidence need not be corroborative evidence of the kind required in R v Baskerville. What the supporting evidence has to be is evidence that makes the judge sure that there was no mistake in the identification. Case:Case:Case:Case: JaafarJaafarJaafarJaafar BinBinBinBin AliAliAliAli vvvv PublicPublicPublicPublic ProsecutorProsecutorProsecutorProsecutor The only proper identification that PW5 made of the accused was when he was in the dock. Since the quality of the identification of the accused by PW5 at the time of the commission of the offence was not good, it thus required supporting evidence which in this case was not available. Accordingly, there was no evidence on the identification of the accused. The warning by the trial judge of the extent of the application of the Turnbull guidelines was insufficient. Although the learned judge had warned himself of the special need for caution, he had not instructed himself on the reason for the need for such warning and had not made any reference to the possibility that a mistaken witness can be a convincing one and that a witness can be quite honest and still be mistaken. A warning of this nature will ensure that the evidence adduced is viewed in its proper perspective.
  18. 18. NURUL ATILIA BINTI MAT DERIS LEB 120079 Case:Case:Case:Case: PPPPPPPP vvvv BasarBasarBasarBasar It was clear from the evidence that the complainantcomplainantcomplainantcomplainant hadhadhadhad knownknownknownknown thethethethe respondentrespondentrespondentrespondent before that night and the scene was about 10 chains from the respondent's house. She said that she saw the accused with the help of twotwotwotwo orororor threethreethreethree flashesflashesflashesflashes ofofofof lightninglightninglightninglightning. She went on to say that she was absolutely certain that it was the respondent who held her. Iswan (P.W.2) gave evidence to say that upon hearing a female voice crying for help he went towards the direction of the voice, together with Rohani, and sawsawsawsaw thethethethe shadowshadowshadowshadow ofofofof aaaa personpersonpersonperson runningrunningrunningrunning awayawayawayaway from the bushes. He then saw P.W.1 crying beside the road near some bushes and P.W.1 said that Basar had embraced her. Rohani (P.W.3) testified that when she was at her house she heard a female voice crying for help, and she went to the place from where the voice came, together with P.W.2. She saw P.W.1 standing near some bushes, crying and shivering. She asked P.W.1 what had happened and P.W.1 said that she was disturbed by Basar who had run away into the bushes. Case:Case:Case:Case: PPPPPPPP vvvv RangapulaRangapulaRangapulaRangapula Where the evidence of identity is poor then there is a need for supporting evidence as to the identification of an accused; in this case no sufficient care had been given by the learned President in testing the evidence of the PW4 with the evidence of the other witnesses and such failure had resulted in a miscarriage of justice. In such circumstances it was unsafe for the learned President to convict the appellants relying solely on the evidence of PW4 without first cautioning himself before doing so. Case:Case:Case:Case: DuisDuisDuisDuis AkimAkimAkimAkim PW1 had positively identified the appellants as thethethethe onesonesonesones whowhowhowho werewerewerewere inininin thethethethe storestorestorestore at the time of the murder. The judge must have been satisfied with the accuracyaccuracyaccuracyaccuracy andandandand qualityqualityqualityquality of the identification relying on the fact PW1 had had a good five-minute look at the faces of the appellants that morning. The other factors which contributed to the good quality of the identification of the appellants were: that the persons who entered the store at the material time were unmasked; the lighting in the store was bright; the persons who pointed parangs at PW1 must have been very near him; PW1's view was not hindered or obstructed; it was not a fleeting glance which PW1 had; his positive identification of the appellants remained unshaken under intensive cross-examination; PW1 had no reason or motive to implicate the appellants and the identification parade was held within a month after the incident.
  19. 19. NURUL ATILIA BINTI MAT DERIS LEB 120079 Case:Case:Case:Case: ChandranChandranChandranChandran a/la/la/la/l PaskaranPaskaranPaskaranPaskaran vvvv PPPPPPPP Isu bergaduh before kill the deceased. The finding of the learned trial judge on the issue identification by PW5 was neither unsatisfactory nor unsafe. TheTheTheThe appellantappellantappellantappellant hadhadhadhad actedactedactedacted withwithwithwith thethethethe commoncommoncommoncommon intentionintentionintentionintention ofofofof causingcausingcausingcausing bodilybodilybodilybodily injuryinjuryinjuryinjury totototo thethethethe deceaseddeceaseddeceaseddeceased whichwhichwhichwhich waswaswaswas sufficientsufficientsufficientsufficient inininin thethethethe ordinaryordinaryordinaryordinary coursecoursecoursecourse ofofofof naturenaturenaturenature totototo causecausecausecause deathdeathdeathdeath. The appellant arrived at the crime scene together with the other assailants and were armed with parangs. The other assailants slashed the deceased. The appellant left the crime scene with the group. Case:Case:Case:Case: JaferiJaferiJaferiJaferi binbinbinbin IpeeIpeeIpeeIpee vvvv PPPPPPPP Applying the Turnbull's guidelines to the facts of this case, there was no doubt the accused was correctly identified by Neti. ThereThereThereThere waswaswaswas moremoremoremore thanthanthanthan enoughenoughenoughenough lightlightlightlight forforforfor purposespurposespurposespurposes ofofofof identificationidentificationidentificationidentification fromfromfromfrom thethethethe fluorescentfluorescentfluorescentfluorescent tubetubetubetube above the main door of the house through which the intruders entered and through which Neti was draggeddraggeddraggeddragged twicetwicetwicetwice by the bigger sized man and near which she was finally tied up and left. The burning bed with the deceased on it would also have created a bonfirebonfirebonfirebonfire whichwhichwhichwhich againagainagainagain wouldwouldwouldwould havehavehavehave providedprovidedprovidedprovided moremoremoremore thanthanthanthan sufficientsufficientsufficientsufficient lightlightlightlight for identification purposes. Finally there was the bigger man telling Neti he had to kill her as she could identify him. The whole episode, of kicking down the front door, the struggles, the dragging of Neti, the questions as to the whereabouts of the money, the attempted rape and the pouring of petrol that was obtained from some other part of the house must have taken some time. The interactions between Neti and the bigger sized man were within close proximity of each other. This was not a case of a 'fleeting glance' within a very short span of time. Neti had all the opportunity and good visibility for her evidence on the identification of the accused to be acceptable. Neti positively identified the accused twice at two separate identification parades. Even though she was subjected to severe cross-examination on the identification parades, her evidence remained unshaken. The identification parades took place about two weeks after the incident which was within a reasonable period when her memory was still vivid and fresh.

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