Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.
CORROBORATION
Corroboration: The general principle
 The meaning of corroboration: It is questionable
whether a strict definition of cor...
Corroboration: The general principle
 The term has been variously (differently) defined.
Lord Hailsham in the Kilbourne’s...
TESTES
PONDERANTUR
NON
NUMERANTUR
MATTER
OF
LAW
MATTER
OF
PRACTICE/
PRUDENT
EXCEPTIONS
UNSWORN
EVIDENCE
OF A
CHILD
SEDITIO...
Corroboration: The general principle
 Section 134 of the Evidence
Act 1950 provides for the
“Number of witness”
(Bilangan...
Corroboration: The general principle
 This means that the testimony of a single
witness, if believed, is sufficient to es...
Corroboration: The general principle
 Section 134 follows the
maxim
 “Testes ponderantur,
non numerantur”
*Please rememb...
Corroboration: The general principle
“Evidence is to
be weighed and
not to be counted
(Numbered)”
Corroboration: The general principle
 “Perlu diingatkan bahawa
saksi-saksi adalah dinilai
dan ditimbangkan dari
keteranga...
Corroboration: The general principle
 The Court is concerned with the
“quality” and not “quantity” of the
evidence.
 The...
Corroboration: The general principle
 In Vadivelu Thevar v. State of
Madras AIR 1957 SC 614, Sinha J.,
states:
 “The sec...
Corroboration: The general principle
 Per Gopal Sri Ram JCA in MGG Pillai v
Tan Sri Dato Vincent Tan Chee Yioun
[1995] 2 ...
Corroboration: The general principle
 Again in Ram August Tewari & Ors v.
Bindeshwari Tewari & Ors AIR 1972 Pat.
142, at ...
Corroboration: The general principle
In the case of Long Bin Samat v PP [1974] 2 MLJ
152, on the night in question the sai...
Corroboration: The general principle
 But: Don’t confuse yourselves: This
section should not be interpreted as a
directio...
Corroboration: The general principle
 As explained by Kingsmill Moore J. in the case of
The People (Attorney General) v. ...
Corroboration: The general principle
Guarding
principles
for
corroboration
The evidence
must be
relevant
&
admissible.
The...
FIRST PRINCIPLE:
EVIDENCE MUST BE
RELEVANT & ADMISSIBLE
Corroboration: The general principle
 Firstly, the evidence must be relevant and admissible. This can
be explained by the...
SECOND PRINCIPLE:
EVIDENCE IN QUESTION
MUST BE CREDIBLE
Corroboration: The general principle
 Secondly, the evidence in question must be
credible.
 As stated by Lord Morris in ...
THIRD PRINCIPLE:
THE CORROBORATING
EVIDENCE
MUST BE
INDEPENDENCE
Corroboration: The general principle
 Thirdly, the corroborating evidence must be
independent, that it should be emanated...
FOURTH PRINCIPLE:
THE CORROBORATING
EVIDENCE
MUST IMPLICATE THE
ACCUSED
Corroboration: The general principle
 Fourthly, the corroborating evidence must implicate the
accused in a material parti...
TYPES OF CORROBORATING
EVIDENCE
Corroboration: The general principle
 It is worth noting that corroboration
was not limited to direct evidence of
indepen...
Corroboration
TESTES
PONDERANTUR
NON
NUMERANTUR
MATTER
OF
LAW
MATTER
OF
PRACTICE/
PRUDENT
EXCEPTIONS
UNSWORN
EVIDENCE
OF A...
Jennico Associates Sdn Bhd v. Lilian Therera
De Costa & Anor
[1998] 3 CLJ 583.
Allegation of sexual harassment
by boss…
Vi...
EXCEPTIONS TO THE GENERAL
RULE: CORROBORATION
REQUIRED AS MATTER OF LAW
OR
PRACTICE/PRUDENCE
(Prinsip keterangan yang meme...
Corroboration
TESTES
PONDERANTUR
NON
NUMERANTUR
MATTER
OF
LAW
MATTER
OF
PRACTICE/
PRUDENT
EXCEPTIONS
UNSWORN
EVIDENCE
OF A...
Corroboration: The exceptions
 Per Augustine Paul JC in Aziz Bin Muhamad Din v
PP [1996] 5 MLJ 473 states “As a general r...
Exceptions to section 134
which follows
the maxim
“Testes ponderantur,
non numerantur”
Corroboration required
as
matter of...
 If the need for
corroboration is
required by law, it is
mandatory.
 If convict without
corroboration, it is
consider er...
CORROBORATION REQUIRED
AS MATTER OF LAW
Corroboration
MATTER
OF
LAW
UNSWORN
EVIDENCE
OF A
CHILD
SEDITIOUS
CASES
ENTRIES IN
BOOKS
OF
ACCOUNT
Unsworn
evidence of a
child
(Keterangan
seorang kanak
– kanak yang
tidak
bersumpah)
Matter of law: Unsworn evidence of a child
 Section 118 of the Malaysian
Evidence Act 1950 provides that all
persons shal...
Matter of law: Unsworn evidence of a child
 Section 133A of the Evidence Act 1950
provides for Evidence of child of
tende...
Matter of law: Unsworn evidence of a child
 The unsworn evidence of a child witness must be
corroborated:
 In Sidek Bin ...
Matter of law: Unsworn evidence of a child
 Manner of ascertaining the capacity of a
child witness:
 Section 133A makes ...
Matter of law: Unsworn evidence of a child
 In Yusaini Bin Mat Adam v PP [2000] 1 CLJ 206, the sessions
court convicted t...
Matter of law: Unsworn evidence of a child
 In R v Hayes (1977) 64 Cr App R 194, where Hayes was charged
with inciting th...
Matter of law: Unsworn evidence of a child
 As was observed by Andrews & Hirst in Criminal
Evidence (3rd Ed, 1997):
 The...
Matter of law: Unsworn evidence of a child
 In Tajudin bin Salleh v Public Prosecutor [2008] 1 MLJ
397 where the 58-year-...
Matter of law: Unsworn evidence of a child
 Held, allowing the appeal and dismissing the cross-
appeal: Section 133A must...
Matter of law: Unsworn evidence of a child
 The basis of the rule on the need
of corroborative evidence for
children is b...
Matter of law: Unsworn evidence of a child
 The evidence of one unsworn witness cannot
corroborate the evidence of anothe...
Sedition
cases
(Kes – kes
hasutan)
Matter of law: Sedition cases
 Section 4 (1) of the Sedition Act 1948 (Act 15) provides that: Any person who
-
 (a) does...
Matter of law: Sedition cases
 Section 6 (1) of the Sedition Act
1948 (Act 15) provides that:
 “Notwithstanding anything...
Matter of law: Sedition cases
 In Lim Guan Eng v PP [1998] 3 CLJ 769 where the appellant also was
alleged to have made a ...
Entries of
book
account
(Catatan
dalam buku
akaun)
Matter of law: Entries of book account
 Section 34 of EA 1950
states “Entries in books of
accounts regularly kept in
the ...
Matter of law: Entries of book account
 In Sim Siok Eng & Anor v Poh Hua Transport
& Contractor Sdn Bhd [1980] 2 MLJ 72, ...
CORROBORATION
REQUIRED AS MATTER OF
PRACTICE
Corroboration
MATTER
OF
PRACTICE
SWORN
EVIDENCE
OF A
CHILD
EVIDENCE
OF AN
ACCOMPLICE
VISUAL
IDENTITY
EVIDENCE
SEXUAL
OFFEN...
Sworn evidence
of a child
(Keterangan
seorang kanak –
kanak yang
bersumpah)
Matter of practice: Sworn evidence of a child
 The requirement of corroboration even in the case of
the sworn evidence of...
Evidence of an
accomplice
(Keterangan
rakan
sejenayah)
Matter of practice: Evidence of an accomplice
 Per Woodward Ag CJ in R v Lim Yam Hong
[1919] 14 SLR 152 states “The statu...
Matter of practice: Evidence of an accomplice
 The corroborative effect of
these 2 sections is that while
section 133 mak...
Matter of practice: Evidence of an accomplice
 In R v Baskerville [1916] 2 K.B. 658, where at
page 663 it is said that : ...
Matter of practice: Evidence of an accomplice
 The rules laid down by the judgment in R v Baskerville [1916]
2 K.B. 658 m...
Matter of practice: Evidence of an accomplice
 In Daud Bin Awang Ngah & Ors v PP
[1958] MLJ 168 it was stated that “There...
Matter of practice: Evidence of an accomplice
 This accomplice rule only applies
to cases where the accomplice is a
prose...
Matter of practice: Evidence of an accomplice
 In the case of Davies v DPP [1954] 1 All ER 507 which
was received locally...
Matter of practice: Evidence of an accomplice
 In Public Prosecutor v Nomezam Apandy
Bin Abu Hassan (No 2) [2008] 1 MLJ 6...
Issue:
Can “agent
provocateur”
be regarded
as an
accomplice?
Matter of practice: Evidence of an accomplice
 The issue of agent provocateur (Undercover agent/
Penyamar sulit): There i...
Visual
Identification
evidence
(Keterangan
identiti visual)
Matter of practice: Identification evidence
 The Turnbull Guidelines (See Reg v. Turnbull [1977]
QB 224): The danger of m...
Matter of practice: Identification evidence
2. The Judge should direct the jury to examine closely the circumstances in
wh...
Matter of practice: Identification evidence
 In PP v Chan Choon Keon & Ors [1989] 2 MLJ 427,
Faiza Thamby Chik JC states ...
Sexual
offences
cases
(Kes – kes
jenayah
seksual)
“An easy allegation
to make but difficult
to established/
disproved/substantiate
/rebut”.
Matter of practice: Sexual offences
 Roberts CJ’s in PP v Emran bin Nasir
[1987] 1 MLJ 166, he stated at p 171
that: “I w...
Matter of practice: Sexual offences
 In England, this view was also found in R v Henry, R v
Manning (1968) 53 Cr App R 16...
Matter of practice: Sexual offences
 Thomson LP in speaking for
the Federal Court in Din v PP
[1964] MLJ 300 said that
“T...
Matter of practice: Sexual offences
 Penser-Wilkinson J in PP v
Mardai [1950] MLJ 33 at p 33:
“Whilst there is no rule of...
Matter of practice: Sexual offences
 It seems clear that the
requirement for
corroboration in cases of
sexual offences al...
Previous statement
(Pernyataan terdahulu)
Other exception: Previous statement
 Section 157 of EA 1950 provides “In order to
corroborate the testimony of a witness,...
The important issue to be
considers:
Whether the previous statement
under section 157 can amount to
corroboration?
Other exception: Previous statement
 R v Whitehead [1929] 1 KB 99, taken the
view that a statement admitted under the
sec...
Guarding
principles
for
corroboration
The evidence
must be
relevant and
admissible.
The evidence
in question
must be credi...
First school of thought:
(Previous statement under
section 157 amount to
corroboration)
Other exception: Previous statement
 Per Terrel J in R v Koh Soon Poh [1935] MLJ 120 states that “Any
former statements m...
Second school of thought:
(Previous statement under section
157 does not amount to
corroboration)
Other exception: Previous statement
 Ong J said in Mohamed Ali v PP [1962] MLJ 230 that “It will not
be out of place here...
Other exception: Previous statement
 In Chiu Nang Hong v PP [1965] 1 MLJ 40 the Privy
Council observed that corroboration...
Other exception: Previous statement
 In Karthiyayani v Lee Leong Sin [1975] 1 MLJ 119, Raja
Azlan Shah FJ said that “Alth...
Other exception: Previous statement
 In Thavanathan a/l Balasubramaniam v PP [1997] 2 MLJ 401,
the Federal Court reiterat...
Evidentiary value of a
statement admitted under
section 157 of EA 1950
Other exception: Previous statement
 In Morgan a/l Perumal v Ketua Inspektor Hussein Bin Abdul Majid
[1996] 3 MLJ 281 Abd...
Evidence-Corroboration
Upcoming SlideShare
Loading in …5
×

Evidence-Corroboration

6,189 views

Published on

Evidence-Corroboration

Published in: Law

Evidence-Corroboration

  1. 1. CORROBORATION
  2. 2. Corroboration: The general principle  The meaning of corroboration: It is questionable whether a strict definition of corroboration is either necessary or desirable. It has been said by Lord Reid (In DPP v. Hester [1973] AC 296) and Lord Hailsham (In PP v. Kilbourne [1973] AC 729) that there is nothing “technical” in the idea of corroboration.  Justice Sharma in the case of Attan Bin Abdul Ghani v. PP [1970] 2 MLJ 143 stated that there is no “magic” in the use of the word corroboration.
  3. 3. Corroboration: The general principle  The term has been variously (differently) defined. Lord Hailsham in the Kilbourne’s case said that the word “corroboration” by itself means no more than evidence tending to “confirm” other evidence. Lord Morris of Borth-y-Gest in Hester’s case seems to suggest the corroboration is evidence tending to “confirm” and “support” other evidence. It is evidence which renders other evidence more probable. (DPP v. Kilbourne, per Lord Simon at 758, citing from Lord Morris of Borth Gest, Lord Pearson and Lord Diplock in DPP v. Hester).
  4. 4. TESTES PONDERANTUR NON NUMERANTUR MATTER OF LAW MATTER OF PRACTICE/ PRUDENT EXCEPTIONS UNSWORN EVIDENCE OF A CHILD SEDITIOUS ACT ENTRIES IN BOOKS OF ACCOUNT SEXUAL OFFENCES SWORN EVIDENCE OF A CHILD IDENTITY EVIDENCE EVIDENCE OF AN ACCOMPLICE OTHER EXCEPTION PREVIOUS STATEMENT
  5. 5. Corroboration: The general principle  Section 134 of the Evidence Act 1950 provides for the “Number of witness” (Bilangan saksi)  “No particular number of witnesses shall in any case be required for the proof of any fact” (Tiada apa – apa bilangan tertentu mengenai saksi dikehendaki dalam sesuatu kes untuk membuktikan sesuatu fakta)  This particular section provides that no particular number of witnesses shall be required for the proof of any fact.
  6. 6. Corroboration: The general principle  This means that the testimony of a single witness, if believed, is sufficient to establish any fact. The result of this section is that in any case, the testimony of a single witness, if believed, is sufficient to establish any fact. The Courts may act on the testimony of a single witness, even though uncorroborated; or upon duly proved documentary evidence without such testimony at all.  See Wright v. Tatham, 5 C & F 670 & Khaw Cheng Bok v Khaw Cheng Poon [1998] 3 MLJ 457.
  7. 7. Corroboration: The general principle  Section 134 follows the maxim  “Testes ponderantur, non numerantur” *Please remember: Its “Testes” NOT “Testis”
  8. 8. Corroboration: The general principle “Evidence is to be weighed and not to be counted (Numbered)”
  9. 9. Corroboration: The general principle  “Perlu diingatkan bahawa saksi-saksi adalah dinilai dan ditimbangkan dari keterangan yang dikemukakannya bukannya dinilai mengikut bilangan saksi yang dikemukakan”
  10. 10. Corroboration: The general principle  The Court is concerned with the “quality” and not “quantity” of the evidence.  The basis of the section is that if a particular number of witness should be required to prove a particular offence it would hamper the administration of justice because in many cases it is not possible to get more than one witness.
  11. 11. Corroboration: The general principle  In Vadivelu Thevar v. State of Madras AIR 1957 SC 614, Sinha J., states:  “The section enshrines the well recognized maxim that ‘Evidence has to be weighed and not counted’ Our legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon”.
  12. 12. Corroboration: The general principle  Per Gopal Sri Ram JCA in MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun [1995] 2 MLJ 493 states “As I earlier said, the respondent was the only witness called to prove his case. The learned Judge appears to have accepted that evidence. In my judgment, based on the authorities referred to, there was no necessity for the respondent to call other witnesses to prove his general damages…”
  13. 13. Corroboration: The general principle  Again in Ram August Tewari & Ors v. Bindeshwari Tewari & Ors AIR 1972 Pat. 142, at page 144, the Court made this important observation: page 144, the Court made this important observation:  “The evidence of every witness is to be judged on its own merits and if there is nothing in his evidence or in the evidence of other witnesses examined in the case to discredit him, it cannot be disbelieved on the ground that there is only one witness on the point and no other witness has been examined to support him”.
  14. 14. Corroboration: The general principle In the case of Long Bin Samat v PP [1974] 2 MLJ 152, on the night in question the said Che Mat bin Mat Hj Awang (PW2) was on his way to a fishing ground in the padi fields. When he switched on his torch soon after he left his house he saw the three appellants whom he had known before about 30 depas away. It was then raining with occasional flashes of lightning. All the three appellants were armed, the first with a parang, the second with a pedang and the third with a kapak. On being flashed at the three appellants charged at him in the course of which the first appellant threw a piece of wood at him. He took to his heels but he fell down at a spot and was slashed several times by the first appellant. He subsequently lost consciousness. All three appellants were convicted by the learned Magistrate under section 324 of the Penal Code (Voluntarily causing hurt by dangerous weapons or means). On appeal, it was contended that there was no corroboration of PW2’s evidence. In reply to these, Ibrahim J states “Under section 134 of the Evidence Act, 1950 no particular number of witnesses shall in any case be required for the proof of any fact and as there was no eye- witness present when the attack on PW2 took place only evidence of PW2 was available and since the learned Magistrate has accepted his evidence that would be sufficient”
  15. 15. Corroboration: The general principle  But: Don’t confuse yourselves: This section should not be interpreted as a direction to convict on the testimony of a single witness.  It does not mean that the court must act upon the evidence of one witness even if it is unshaken in cross- examination and no way discredited by the witness’s demeanour.
  16. 16. Corroboration: The general principle  As explained by Kingsmill Moore J. in the case of The People (Attorney General) v. Casey (No. 2) [1963] Ir. R. 33 at 38 (Irish Supreme Court) 249 “It is the function of a Judge in his charge to give to the jury such direction and warnings as may in his opinion be necessary to avoid the danger of an innocent man being convicted”.  This justification of the corroboration was reinforced by Lord Morris in DPP v. Hester [1973] AC 296 at p. 315 when he said that “any risk of the conviction of an innocent person is lessened if conviction is based upon the testimony of more than one acceptable witness”.
  17. 17. Corroboration: The general principle Guarding principles for corroboration The evidence must be relevant & admissible. The evidence in question must be credible. The corroboration evidence must be independent. The corroboration evidence must implicate the accused  In the present state of affairs thus there is yet to be a specific definition of the term, and whether there is a need for such a definite, comprehensive and technical definition remains unclear. What is clear from the authorities is that evidence will not in law amount to corroboration unless it meets certain requirements as stated below: See PP v Rosman Abdul Wahab [2006] 4 CLJ 615.
  18. 18. FIRST PRINCIPLE: EVIDENCE MUST BE RELEVANT & ADMISSIBLE
  19. 19. Corroboration: The general principle  Firstly, the evidence must be relevant and admissible. This can be explained by the judgment of Lord Scarman in the case of R v. Scarrott [1978] QB 1016 at 1021. He said: “The admissibility of similar fact evidence, even when it is adduced as it is in this case as corroboration of direct evidence, does not depend upon whether it is capable of corroborating the evidence of the victim or accomplice, it depends upon its positive value and not vice- verse; for if the evidence be admissible, it follows that it is capable of corroborating”. The most important feature of the law of evidence is that evidence which is sufficiently relevant to prove or disprove a fact in issue and which is not excluded by any rule of the law of evidence is admissible. Therefore it will be conveniently said that to be admissible, evidence must be relevant.  The judgment of Lord Hailsham in Kilbourne’s case at page 741 make it much clearer that evidence must be admissible and relevant before amounting to corroboration. The learned Judge said: In my opinion, evidence which is (a) admissible and (b) relevant to the evidence requiring corroboration, and, if believed, confirming it in the required particulars, is capable of being corroboration of that evidence and, when believed, is in fact such corroboration.
  20. 20. SECOND PRINCIPLE: EVIDENCE IN QUESTION MUST BE CREDIBLE
  21. 21. Corroboration: The general principle  Secondly, the evidence in question must be credible.  As stated by Lord Morris in Hester’s case: “Corroboration is only required or afforded (give) if the witness requiring corroboration or giving it is otherwise credible ... corroboration can only be afforded (give) to or by a witness who is otherwise to be believed”.  A similar observation was made by Lord Hailsham in Kilbourne’s case. He emphasised that if a witness’s testimony falls of its own inanition (no quality), the question of his being capable of giving corroboration does not arise.
  22. 22. THIRD PRINCIPLE: THE CORROBORATING EVIDENCE MUST BE INDEPENDENCE
  23. 23. Corroboration: The general principle  Thirdly, the corroborating evidence must be independent, that it should be emanated from a source other than the witness requiring to be corroborated. In Kilbourne’s case Lord Reid said: “We must astute (wise) to see that the apparently corroborative statement is truly independent of the doubted statement. If there is any real chance that there has been collusion (involvement) between the makers of the two statements, we should not accept them as corroborative.  Similar observations were made by Lord Wilberforce and Lord Cross in R v. Boardman [1975] AC 421 at 444 and 459 respectively. Keterangan sokongan mestilah keterangan yang bebas dan boleh dipercayai
  24. 24. FOURTH PRINCIPLE: THE CORROBORATING EVIDENCE MUST IMPLICATE THE ACCUSED
  25. 25. Corroboration: The general principle  Fourthly, the corroborating evidence must implicate the accused in a material particular. In R v. Baskerville [1916] 2 KB 658, Lord Reading CJ said: “Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it”.  The Privy Council in the case of Dowse v. A. G. Federation of Malaya [1961] 27 MLJ 249 held that: “For evidence to be corroborative, it must be truly probative of the relevant issues, that is, it must positively implicate the accused person and positively show or tend to show the truth of the accomplice’s story that the accused committed the offence”.
  26. 26. TYPES OF CORROBORATING EVIDENCE
  27. 27. Corroboration: The general principle  It is worth noting that corroboration was not limited to direct evidence of independent witnesses.  It was frequently provided by a combination of pieces of circumstantial evidence which together tended to show that the defendant committed the crime. See section 156 of EA 1950 & the case of Shanmugam a/l Munusamy v PP [1999] 1 MLJ 288 & R v. Hills [1988] 86 Cr. App. R. 26).
  28. 28. Corroboration TESTES PONDERANTUR NON NUMERANTUR MATTER OF LAW MATTER OF PRACTICE/ PRUDENT EXCEPTIONS UNSWORN EVIDENCE OF A CHILD SEDITIOUS ACT ENTRIES IN BOOKS OF ACCOUNT SEXUAL OFFENCES SWORN EVIDENCE OF A CHILD IDENTITY EVIDENCE EVIDENCE OF AN ACCOMPLICE OTHER EXCEPTION PREVIOUS STATEMENT 1 2 3 4 5 6 7 8
  29. 29. Jennico Associates Sdn Bhd v. Lilian Therera De Costa & Anor [1998] 3 CLJ 583. Allegation of sexual harassment by boss… Victim resign and claim for constructive dismissal… Award was given by the Industrial Court to the victim… Application made in the High Court for an order of certiorari to quash the award of the Industrial Court… Certiorari granted; decision of Industrial Court quashed… Reason: NO CORROBORATION… NGO’s proposed: It is not necessary for evidence of sexual harassment be corroborated GEN
  30. 30. EXCEPTIONS TO THE GENERAL RULE: CORROBORATION REQUIRED AS MATTER OF LAW OR PRACTICE/PRUDENCE (Prinsip keterangan yang memerlukan sokongan, sama ada berkaitan dengan perkara undang – undang bertulis atau amalan)
  31. 31. Corroboration TESTES PONDERANTUR NON NUMERANTUR MATTER OF LAW MATTER OF PRACTICE/ PRUDENT EXCEPTIONS UNSWORN EVIDENCE OF A CHILD SEDITIOUS ACT ENTRIES IN BOOKS OF ACCOUNT SEXUAL OFFENCES SWORN EVIDENCE OF A CHILD IDENTITY EVIDENCE EVIDENCE OF AN ACCOMPLICE OTHER EXCEPTION PREVIOUS STATEMENT 1 2 3 4 5 6 7 8
  32. 32. Corroboration: The exceptions  Per Augustine Paul JC in Aziz Bin Muhamad Din v PP [1996] 5 MLJ 473 states “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”. Unless corroboration is insisted upon by statute, 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 example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
  33. 33. Exceptions to section 134 which follows the maxim “Testes ponderantur, non numerantur” Corroboration required as matter of law Corroboration required as matter of practice.
  34. 34.  If the need for corroboration is required by law, it is mandatory.  If convict without corroboration, it is consider erred in law thus give ground for an appeal.  If the need of corroboration is required as a matter of practice or prudence. All the judge need to do is to warn/caution himself the dangers of convicting the accused without corroboration and he need to wrote this warn/caution in his notes of proceeding.  If the accused is convicted without the judge giving himself the warn/caution, this also can be a ground of appeal. Matter of law Matter of practice
  35. 35. CORROBORATION REQUIRED AS MATTER OF LAW
  36. 36. Corroboration MATTER OF LAW UNSWORN EVIDENCE OF A CHILD SEDITIOUS CASES ENTRIES IN BOOKS OF ACCOUNT
  37. 37. Unsworn evidence of a child (Keterangan seorang kanak – kanak yang tidak bersumpah)
  38. 38. Matter of law: Unsworn evidence of a child  Section 118 of the Malaysian Evidence Act 1950 provides that all persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.  Under this section the sole test in determining the competency of a witness is whether the witness has sufficient intellectual capacity to understand and give rational answers to the question. Therefore a child is competent to testify, if he or she can understand the question put to him, and give rational answers thereto. No precise age limit is given.
  39. 39. Matter of law: Unsworn evidence of a child  Section 133A of the Evidence Act 1950 provides for Evidence of child of tender years (Keterangan seseorang kanak – kanak yang masih muda) which states “Where, in any proceedings against any person for any offence, any child of tender years called as a witness does not in the opinion of the court understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth…”  Provided that, where evidence admitted by virtue of this section is given on behalf of the prosecution, the accused shall not be liable to be convicted of the offence unless that evidence is corroborated by some other material evidence in support thereof implicating him.
  40. 40. Matter of law: Unsworn evidence of a child  The unsworn evidence of a child witness must be corroborated:  In Sidek Bin Ludan v PP [1995] 3 MLJ 178 Abdul Malik Ishak J states “The effect of this amendment is far reaching. The proviso to section 133A of the Act in simple terms means this: A conviction cannot stand on the uncorroborated evidence of an unsworn child witness. It is insufficient for the trial court to merely administer a warning on the dangers of so convicting as the amendment now makes it a rule of law, more explicitly, that the evidence of an unsworn child witness shall be corroborated. This amendment distinguishes between the testimony of a sworn and an unsworn child witness. In the case of a sworn child witness the old rule of prudence applies, viz, the need to give an exhaustive warning on the dangers of convicting on such uncorroborated evidence. Whereas in the case of an unsworn child witness, section 133A of the Act applies”. See also PP v Mohd Noor bin Abdullah [1992] 1 CLJ 702.
  41. 41. Matter of law: Unsworn evidence of a child  Manner of ascertaining the capacity of a child witness:  Section 133A makes it obligatory for a trial court, by way of a preliminary inquiry, (mengadakan suatu penyiasatan untuk membentuk satu pendapat) to ascertain the capacity of the child to understand the questions and give rational answers. The object is to determine whether the child is in position to be sworn.  See Muharam Bin Anson v PP [1981] 1 MLJ 222.
  42. 42. Matter of law: Unsworn evidence of a child  In Yusaini Bin Mat Adam v PP [2000] 1 CLJ 206, the sessions court convicted the appellant for the offence of rape committed on a girl aged 10 years 8 months. The girl was of the age of 11 when she gave evidence in court during the trial. Despite the fact the girl was a child of tender years, the court did not hold an inquiry to form an opinion whether the child was in the position to be sworn in accordance with the requirements under section 133A of the Evidence Act 1950 ('the Act'). The girl gave contradictory evidence and the observations noted by the sessions judge showed that the she behaved strangely through the trial. The appellant appealed.  Held, allowing the appeal: The court when accepting the evidence of a child of tender years ought to have examined whether the child had sufficient appreciation of the responsibility of telling the truth over the ordinary duty to tell the truth upon pain of punishment for perjury. On the failure of the session court judge to follow the procedure in s 133A of the Act, the conviction should be set aside.
  43. 43. Matter of law: Unsworn evidence of a child  In R v Hayes (1977) 64 Cr App R 194, where Hayes was charged with inciting three boys to commit acts of gross indecency with him, and also with committing an act of gross indecency with one of them. The boys were called as witnesses and the two older boys, aged 11 and 12, were sworn after being examined by the judge. The judge’s questions during his examination were to a large extent concerned with the boys’ religious understanding, but it was clear that the oldest boy, in particular, had little if any religious belief. The appellant claimed that the boy should not have been sworn in those circumstances, but the Court of Appeal upheld the trial judge’s decision.  Bride LJ said at 196: It is unrealistic not to recognise that, in the present state of society, amongst the adult population the divine sanction of an oath is probably not generally recognised. The important consideration we think, when a judge has to decide whether a child should properly be sworn, is whether the child has a sufficient appreciation of the solemnity of the occasion and the added responsibility to tell the truth, which is involved in taking an oath, over and above the duty to tell the truth which is an ordinary duty of normal, social conduct. (Emphasis added.)
  44. 44. Matter of law: Unsworn evidence of a child  As was observed by Andrews & Hirst in Criminal Evidence (3rd Ed, 1997):  The competence of a child could never be presumed. Even for the purpose of giving unsworn testimony, it was still necessary to establish by positive means that the child understood the ordinary duty of telling the truth. It was the duty of a court or judge to determine competence and the proper level of competence before proceeding to admit evidence from a child. This could involve the child being asked questions by the trial judge, and it could also involve the calling of expert opinion evidence from child psychologists. If a child was allowed to testify without such prior examination, any conviction based on that child’s evidence was liable to be quashed on the ground of material irregularity (R v Khan (1981) 73 Cr App R 190).
  45. 45. Matter of law: Unsworn evidence of a child  In Tajudin bin Salleh v Public Prosecutor [2008] 1 MLJ 397 where the 58-year-old accused was charged under s 354 of the Penal Code in the magistrates’ court with using criminal force with intent to outrage the modesty of a 10-year-old girl. He was convicted on the charge and sentenced to 20 months’ imprisonment. The accused appealed against conviction and sentence and the DPP cross-appealed against inadequacy of sentence. On appeal, counsel for the accused contended inter alia that the magistrate had failed to examine whether the child victim PW2 and a child witness PW3 had sufficient appreciation of the solemnity of the occasion as required by law and practice. The evidence of PW 2 was also not corroborated. There was no evidence to show that the magistrate had established the competency of the child witnesses to give evidence. The High Court had therefore to determine whether such omission was fatal.
  46. 46. Matter of law: Unsworn evidence of a child  Held, allowing the appeal and dismissing the cross- appeal: Section 133A must be read together with s 118 which makes all witnesses competent witnesses and makes reference to a person of tender years. Under s 133A, when a child of tender years is called to give evidence, there is a duty upon the court to ensure that the child understands the nature of an oath. The evidence can be received without an oath if the court is of the opinion that the child possesses sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth.  However, under s 133A, the child’s evidence must be corroborated or there must be some other evidence implicating the accused before he can be convicted. See also the case of Public Prosecutor v Chan Wai Heng [2008] 5 MLJ 798
  47. 47. Matter of law: Unsworn evidence of a child  The basis of the rule on the need of corroborative evidence for children is because the widespread belief among lawyers that children testimony are unreliable or less reliable.  They tend to think that children’s memory is inferior, so their evidence should be regarded as inaccurate.  Children, as commonly quoted, are unable to differentiate between “fantasy” and “reality”.  See Chao Chong & Ors v PP [1960] MLJ 238; Loo Chuan Huat v PP [1971] 2 MLJ 167; Tham Kai Yau & Ors v PP [1977] 1 MLJ 174 & Shanmugam a/l Munusamy v PP [1999] 1 MLJ 288.
  48. 48. Matter of law: Unsworn evidence of a child  The evidence of one unsworn witness cannot corroborate the evidence of another unsworn witness:  Per Muhammad Kamil J in PP v Mohammad Terang Bin Amit [1999] 1 MLJ 154 states “An accused person is not to be convicted on unsworn evidence unless it is corroborated by some other material evidence in support thereof implicating the accused. The disqualification applies to all the unsworn evidence given in a particular case; if there are two or more children giving unsworn evidence to the same effect, still there can be no conviction unless there is some other evidence corroborating their evidence”
  49. 49. Sedition cases (Kes – kes hasutan)
  50. 50. Matter of law: Sedition cases  Section 4 (1) of the Sedition Act 1948 (Act 15) provides that: Any person who -  (a) does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act which has or which would, if done, have a seditious tendency;  (b) utters any seditious words;  (c) prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication; or  (d) imports any seditious publication,  shall be guilty of an offence and shall, on conviction, be liable for a first offence to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to both, and, for a subsequent offence, to imprisonment for a term not exceeding five years; and any seditious publication found in the possession of the person or used in evidence at his trial shall be forfeited and may be destroyed or otherwise disposed of as the court directs.
  51. 51. Matter of law: Sedition cases  Section 6 (1) of the Sedition Act 1948 (Act 15) provides that:  “Notwithstanding anything to the contrary contained in the Evidence Act no person shall be convicted of an offence under section 4 on the uncorroborated testimony of one witness”.
  52. 52. Matter of law: Sedition cases  In Lim Guan Eng v PP [1998] 3 CLJ 769 where the appellant also was alleged to have made a speech in which he said that he was dissatisfied with the laws of Malaysia because of the double standard which resulted in the rape case involving Rahim not being brought to court and with the fact that the court had ordered the minor to be detained for three years whereas Rahim, who should have been imprisoned for violating the law, was instead set free. These two comments resulted in the second charge against the appellant, that he had committed sedition contrary to s 4(1) (b) of the Sedition Act 1948 ('the second charge'). The trial judge found the appellant guilty on the first charge and sentenced him to a fine of RM10,000, in default six months’ imprisonment. The judge also convicted the appellant on the second charge and imposed a fine of RM5,000, in default three months' imprisonment. The appellant appealed against both convictions and sentences passed upon him. At the same time, there were two cross-appeals by the Public Prosecutor who complained that the sentence passed upon the appellant in respect of each proved offence was inadequate. Held, after considering all the witness evidence which is fully corroborated, dismissing the appellant’s appeals but allowing the respondent's cross-appeals. The appellant was sentenced to 18 months imprisonment on each charge. (Evidence of corroboration by witnesses in this case is regarded as sufficient).  See also Lim Guan Eng v PP [2000] 2 CLJ 541 where the Federal Court uphold his conviction.
  53. 53. Entries of book account (Catatan dalam buku akaun)
  54. 54. Matter of law: Entries of book account  Section 34 of EA 1950 states “Entries in books of accounts regularly kept in the course of business are relevant whenever they refer to a matter into which the court has to inquire, but the entries shall not alone be sufficient evidence to charge any person with liability”. Illustration: A. sues B. for $1,000 and shows entries in his account books showing B. to be indebted to him to this amount. The entries are relevant, but are not sufficient without other evidence to prove the debt.
  55. 55. Matter of law: Entries of book account  In Sim Siok Eng & Anor v Poh Hua Transport & Contractor Sdn Bhd [1980] 2 MLJ 72, 73, where in this case the respondent claimed the sum of $ 5,283.25 for goods sold and delivered to the appellants. To support its case the respondent produced its books of accounts kept by it to record its transactions with several customers including the appellants. Evidence was given that the goods were ordered and delivered to the appellant’s premises and that the entries in the account books were entered from the invoices. The learned trial judge gave judgment for the respondents and the appellants appealed. Held, dismissing the appeal: (1) the books of account were regularly kept in the cause of business and referred to a matter into which the court had to inquire and were therefore admissible under section 34 of the Evidence Act; (2) corroboration of the entries in the book of account were to be found in the book of account itself, in the admission by the appellants which tallied with the first four entries relating to them and in the oral evidence relating to the order and the supply of the goods.
  56. 56. CORROBORATION REQUIRED AS MATTER OF PRACTICE
  57. 57. Corroboration MATTER OF PRACTICE SWORN EVIDENCE OF A CHILD EVIDENCE OF AN ACCOMPLICE VISUAL IDENTITY EVIDENCE SEXUAL OFFENCE CASES
  58. 58. Sworn evidence of a child (Keterangan seorang kanak – kanak yang bersumpah)
  59. 59. Matter of practice: Sworn evidence of a child  The requirement of corroboration even in the case of the sworn evidence of a child:  Per Azmi LP in Loo Chuan Huat v PP [1971] 2 MLJ 167 states “One point, perhaps, requires observation: though the evidence of P.W. 4 was sworn evidence, he was nevertheless a young person and in our opinion the jury should have been warned of the risk of accepting his evidence”.  As Lord Goddard C.J. in Reg v Campbell [1956] 2 QB 432, 438 said: “... The sworn evidence of a child need not as a matter of law be corroborated, but a jury should be warned not that they must find corroboration, but that there is a risk in acting on the uncorroborated evidence of young boys or girls, though they may do so if convinced that the witness is telling the truth, and this warning should also be given where a young boy or girl is called to corroborate the evidence either of another child, sworn or unsworn, or of an adult”.
  60. 60. Evidence of an accomplice (Keterangan rakan sejenayah)
  61. 61. Matter of practice: Evidence of an accomplice  Per Woodward Ag CJ in R v Lim Yam Hong [1919] 14 SLR 152 states “The statute law regarding accomplices is to be found in sections 114, illustration (b) and 133 of the Evidence Ordinance”.  Section 133 provides “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”.  Section 114 Illustration (b): “An accomplice is unworthy of credit unless he is corroborated in material particulars”.
  62. 62. Matter of practice: Evidence of an accomplice  The corroborative effect of these 2 sections is that while section 133 make it not illegal to convict a person on uncorroborated testimony of the accomplice  section 114 illustration (b) provides that a judge must caution himself of the dangers of convicting uncorroborated evidence of an accomplice.
  63. 63. Matter of practice: Evidence of an accomplice  In R v Baskerville [1916] 2 K.B. 658, where at page 663 it is said that : “There is no doubt that the uncorroborated evidence of an accomplice is admissible in law. But it has long been a rule of practice in common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or accomplices, and, in the discretion of the judge, to advise them not to convict upon such evidence, but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence”. See R.v. Atwood [1787] 1 Leach 464.
  64. 64. Matter of practice: Evidence of an accomplice  The rules laid down by the judgment in R v Baskerville [1916] 2 K.B. 658 may be briefly stated thus:- 1. The uncorroborated evidence of an accomplice is admissible, and a conviction founded on such evidence is not illegal. 2. But it is a rule of practice virtually equivalent to a rule of law that the presiding judge must warn the jury of the danger of convicting on such evidence. 3. It is also his duty to tell them that nevertheless they can legally convict on such evidence. 4. When it appears that the judge has not given the required warning, the Court of Appeal will quash the conviction. 5. The corroboration must be evidence which implicates the accused. Evidence tending merely to show that a crime has been committed is insufficient.
  65. 65. Matter of practice: Evidence of an accomplice  In Daud Bin Awang Ngah & Ors v PP [1958] MLJ 168 it was stated that “There is no rule of law which demands that in every case where an accused person gives evidence which tends to incriminate a co-accused, the jury should be warned that it is dangerous to convict upon such evidence unless it is corroborated. Whether or not such a warning should be given to the jury is not a matter of law. It is a matter to be decided in the light of the circumstances of each individual case”.
  66. 66. Matter of practice: Evidence of an accomplice  This accomplice rule only applies to cases where the accomplice is a prosecution witness. It does not apply to defence witness. (See Daud Bin Awang Ngah & Ors v PP [1958] MLJ 168, 169-170 & Davies v DPP [1954] AC 378).
  67. 67. Matter of practice: Evidence of an accomplice  In the case of Davies v DPP [1954] 1 All ER 507 which was received locally in the case of Re Soot Leot [1956] MLJ 54, 55-56, where it has classify 3 types of accomplices: a) Participes Criminis. Participants in a crime. They commit the crime together. b) Receiver of stolen goods from the thief. c) When A has been charged with a specific offence on a particular occasion. And evidence is admissible, and has been admitted, of his having committed crimes of this identical type on other occasions, as proving system and intent and negativing accident; in such case the court has held that in relation to such other similar offences, if evidence of them were given by parties to them, the evidence of such other parties should not be left to the jury without a warning that it dangerous to accept it without corroboration.
  68. 68. Matter of practice: Evidence of an accomplice  In Public Prosecutor v Nomezam Apandy Bin Abu Hassan (No 2) [2008] 1 MLJ 68 where it states that: “In Malaysia, a person is an accomplice if he is a participles criminis — has participated in the commission of an offence. Where he had played an active role, his evidence must be corroborated. If his role was passive, his evidence may be accepted with the usual corroboration warning…”
  69. 69. Issue: Can “agent provocateur” be regarded as an accomplice?
  70. 70. Matter of practice: Evidence of an accomplice  The issue of agent provocateur (Undercover agent/ Penyamar sulit): There is no requirement of corroborative warning. However if the extent of participation is major and active, the court may want to scrutinise the evidence of an agent provocateur with care.  In Teja Singh & Mohamed Nasir v PP [1950] MLJ 71, 74-76 where in this case the two appellants appealed against their conviction and sentence for abetment of bribery and bribery respectively. Held: Appeal dismissed: (1) stated that the police officers were at most agents provocateurs and not accomplices and that on the facts of this case the evidence of the police officers was properly received in evidence.  See also the case of Public Prosecutor v Rames a/l Subramaniam [2008] 5 MLJ 820.
  71. 71. Visual Identification evidence (Keterangan identiti visual)
  72. 72. Matter of practice: Identification evidence  The Turnbull Guidelines (See Reg v. Turnbull [1977] QB 224): The danger of miscarriage of justice occurring could be reduced if the trial Judges summed up to the juries the following rules. The guidelines are as follows: 1. Whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some references to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the Judge need not use any particular form of words.
  73. 73. Matter of practice: Identification evidence 2. The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in anyway, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asked to be given particulars of such descriptions, prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence….
  74. 74. Matter of practice: Identification evidence  In PP v Chan Choon Keon & Ors [1989] 2 MLJ 427, Faiza Thamby Chik JC states “In dealing with the evidence of visual identification, the court has to remind itself of the special need for caution before convicting the accused in reliance on the correctness of the identification…”  In Tan Kim Hoo v PP [2007] 6 CLJ 557 where it was stated that “The issue of identity of each of the accused in the instant case was a question of fact and must be determined by a trial court like any other fact sensitive issue in accordance with well- established guidelines governing the judicial appreciation of evidence”.
  75. 75. Sexual offences cases (Kes – kes jenayah seksual)
  76. 76. “An easy allegation to make but difficult to established/ disproved/substantiate /rebut”.
  77. 77. Matter of practice: Sexual offences  Roberts CJ’s in PP v Emran bin Nasir [1987] 1 MLJ 166, he stated at p 171 that: “I warn myself that, on a charge of rape, it is dangerous to convict on the evidence of the complainant alone, since experience has shown that female complainants have told false stories for various reasons”.
  78. 78. Matter of practice: Sexual offences  In England, this view was also found in R v Henry, R v Manning (1968) 53 Cr App R 160. There, Salmon LJ said at p 153: “What the judge has to do is to use clear and simple language that will without any doubt convey to the jury that in cases of alleged sexual offences it is really dangerous to convict on the evidence of the woman or girl alone. This is dangerous because human experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not now enumerate, and sometimes for no reason at all”.
  79. 79. Matter of practice: Sexual offences  Thomson LP in speaking for the Federal Court in Din v PP [1964] MLJ 300 said that “The need for corroboration in such cases springs not from the nature of the witness but from the nature of the offence” and added at page 301 “If however, she complains of having been raped, then both prudent and practice demand that her evidence should be corroborated”.
  80. 80. Matter of practice: Sexual offences  Penser-Wilkinson J in PP v Mardai [1950] MLJ 33 at p 33: “Whilst there is no rule of law in this country that in sexual offences the evidence of the complainant must be corroborated, nevertheless it appears to me, as a matter of common sense, to be unsafe to convict in cases of this kind unless either the evidence of the complainant is unusually convincing or there is some corroboration of the complainant's story”.
  81. 81. Matter of practice: Sexual offences  It seems clear that the requirement for corroboration in cases of sexual offences also applies where the victim is male.  This can be seen from the English case of R v Burgess (1956) 40 Cr App R 144.
  82. 82. Previous statement (Pernyataan terdahulu)
  83. 83. Other exception: Previous statement  Section 157 of EA 1950 provides “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, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved”.  This section provides that the former statement of a witness may be proved in order to corroborate his present testimony relating to the same fact.
  84. 84. The important issue to be considers: Whether the previous statement under section 157 can amount to corroboration?
  85. 85. Other exception: Previous statement  R v Whitehead [1929] 1 KB 99, taken the view that a statement admitted under the section is not of any genuine corroborative value as a witness cannot corroborate himself. Corroborative evidence must be external to the witness. It must be from outside source and not from the witness himself. Lord Heward held that corroborative evidence must be external or not if witness repeats 25 times there will be 25 corroborations. It is thus necessary to cite the matter under two schools of thought:
  86. 86. Guarding principles for corroboration The evidence must be relevant and admissible. The evidence in question must be credible. The evidence must be independent. The evidence must implicate the accused  Section 157 of EA 1950 provides:  “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, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved”.
  87. 87. First school of thought: (Previous statement under section 157 amount to corroboration)
  88. 88. Other exception: Previous statement  Per Terrel J in R v Koh Soon Poh [1935] MLJ 120 states that “Any former statements made by a witness and coming within section 157 of Ordinance No. 53 (Evidence), are admissible as corroboration of the evidence given by such witness at the trial”.  In PP v Samsul Kamar Bin Mohd Zain [1988] 2 MLJ 252, KC Vohrah states “…That a former statement of a witness may be proved in court to corroborate his testimony…”.  In PP v Teo Eng Chan [1988] 1 MLJ 156 where it was states that “Former statement by a witness, complying with the requirements of section 159 of the Evidence Act, is corroborative of the witness and goes beyond showing consistency as it does in English law”.  Liew Kim Yong v PP [1989] 3 MLJ 323 where it was states that ”A plain reading of section 159 of the Evidence Act showed that the complainant's complaint to her sister over the phone and to her mother and sister were admissible as corroboration of the complainants own evidence. This evidence not only confirmed in material particulars that the complainant had been raped, but also that the appellant had raped her”. (See also Lim Baba v PP
  89. 89. Second school of thought: (Previous statement under section 157 does not amount to corroboration)
  90. 90. Other exception: Previous statement  Ong J said in Mohamed Ali v PP [1962] MLJ 230 that “It will not be out of place here to say a few words about s. 157 of the Evidence Ordinance. Admissibility of a previous statement under that action must not be confused with the weight to be given to it. Corroboration, strictly speaking, means independent corroboration as explained in R v. Baskerville [1916] 2 KB 658. In my opinion true corroboration by independent evidence from an extraneous source should be distinguished from "corroboration" as it appears in s. 157, which rests on the principle that consistency between a previous statement by a witness and his present evidence may afford, some ground for believing him. The value of such a statement as corroboration may be infinitesimal (small), as in the majority of cases it is. On the other hand, by reason of the abundance of detail it may contain as to the facts and circumstances surrounding any relevant transaction, it may be capable of being cross-checked for truthfulness against other relevant evidence, in which case, of course, it may be effective corroboration, but only because it has been shown to be true”.
  91. 91. Other exception: Previous statement  In Chiu Nang Hong v PP [1965] 1 MLJ 40 the Privy Council observed that corroboration must come from an independent source.  In Ah Mee v PP [1967] 1 MLJ 220, Ong FJ said “With respect, corroboration in the legal sense connotes some independent evidence of some material fact which implicates the accused person and tends to confirm that he is guilty of the offence: see Clynes [1960], 44 Cr App R 158, 161. Consistency is not such corroboration and s. 157 of the Evidence Ordinance should be read in the light of my exegesis thereof in the case of Mohamed Ali v PP [1962] MLJ 230”.
  92. 92. Other exception: Previous statement  In Karthiyayani v Lee Leong Sin [1975] 1 MLJ 119, Raja Azlan Shah FJ said that “Although the previous statement made under section 157 is admissible as corroboration, it constitutes a very weak type of corroborative evidence as it tends to defeat the object of the rule that a person cannot corroborate himself”.  Gopal Sri Ram in Lim Guan Eng v PP [1998] 3 MLJ 14 reviewed the law relating to corroboration. He came to the view that corroboration must be external to the witness or not if a witness repeats it 100 times, there will be 100 corroborations. It is a basic common law principle that evidence requires corroboration. It does not remove its taint by repetition, notwithstanding section 157.
  93. 93. Other exception: Previous statement  In Thavanathan a/l Balasubramaniam v PP [1997] 2 MLJ 401, the Federal Court reiterated (repeat) the principle that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime.  In Aziz Mohd Din v PP [1996] 5 MLJ 473 Augustine Paul JC said that a statement rendered admissible by section 157 of the Act cannot be treated as corroboration of evidence.  In PP v Paneerselvan [1991] 1 MLJ 106 Edgar Joseph Jr J in ruling stated that a pervious statement was technically admissible excluded it as corroboration under section 157. It can therefore be taken to be settled law that a previous statement rendered admissible by this section cannot constitute evidence of corroboration as popularly understood.
  94. 94. Evidentiary value of a statement admitted under section 157 of EA 1950
  95. 95. Other exception: Previous statement  In Morgan a/l Perumal v Ketua Inspektor Hussein Bin Abdul Majid [1996] 3 MLJ 281 Abdul Malik Ishak J, after reviewing the cases referred earlier, said that “a previous statement gives rise to a strong assumption of consistency”.  In YK Fung Securities Sdn Bhd v James Capel (Far East) Ltd [1997] 2 MLJ 621 Mahadev Shankar JCA said that “a pervious statement could only be used to show consistency or to contradict testimony of a witness”.  In PP v Dato’ Seri Anwar Bin Ibrahim (No 3) [1999] 2 MLJ 1 Augustine Paul J said that “The corroboration set out in section 157 is only for the purpose of showing that the witness is consistent”.  In Ariyadasa v The Queen [1966] 68 NLR 257 TS Fernando J said: “The corroboration that s. 157 contemplates is not corroboration in the conventional sense in which the term is used in courts of law, but in the sense of consistency in the conduct of the witness tending to render his testimony more acceptable”.

×