LAW578

LAW OF EVIDENCE 2

WITNESSES:
CORROBORATION
HABIBAH OMAR
[email protected]; [email protected]
(UPDNov2022)

©HabibahOmar@UiTMLaw
 CONTENT
vWhat is corrobora,on?
vWitnesses whose evidence require corrobora,on:
Ø Child Witness
Ø Vic,ms of Sexual Offences
Ø Accomplice
Ø Accessory ABer the Fact
Ø Agent Provocateur
Ø Hos,le Witness
Ø Co-Accused as a witness
©HabibahOmar@UiTMLaw
 S. 134
Evidence Act did not specify the required no of witnesses to be called to prove MAXIM : Evidence is to be weighed, not counted
a case ; HENCE The Wagon [1985] – One credible witness may outweighs any number of other
The testimony of a SINGLE WITNESS, if believed, will establish a fact witnesses

HOWEVER – some evidence are suspected or dif#cult to be believed because of the LABEL attached to a particular witness

Credibility is in issue, hence affects WEIGHT of Evidence SUCH evidence requires CORROBORATION

CORROBORATION
De#nition : Evidence that support a fact or testimony of a Witness
R v Baskerville [1916] Attan Bin Abdul Ghani [1970]
* Evidence is not necessarily corroborated in all
Corroboration must be an INDEPENDENT testimony which affects the circumstances; enough if there is additional evidence
Accused by connecting or tending to connect him with the crime….it Brabakaran v PP [1966] –
* Corr must be an independent evidence that NOT only
must be evidence which implicates him, that is, which conArms in some corroboration evidence can be
show that a crime it committed BUT connects A to the
material particular not only the evidence that a crime has been direct or circumstantial evidence crime in material particular
committed, but also the accused committed it and must itself be admissible * Corr must be from independent source
Corroborative evidence MUST be : independent, relevant, credible, * Can be DE or CE
admissible AND implicate the Accused in a material particular * Corr must be of material particular
 TYPES OF CORROBORATION

CORROBORATION AS A
CORROBORATION AS A
MATTER OF PRACTICE AND
MATTER OF LAW
PRUDENT
• Statute requires corroboration • Derived from judicial decisions
• Judges have a duty to see whether the • Corroboration is NOT mandatory BUT
witness’ evidence has suf9ciently been exercised as a matter of CAUTION
corroborated before reliance on it is • The witnesses are POTENTIALLY
made UNRELIABLE
• Judge has no discretion to dispense • Example : Evidence of an accomplice –
corroboration s. 114(g), s 133
• Example: Unsworn evidence of a child
– S. 133A
 CHILD WITNESSES
(COMPETENCY & CORROBORATION)
GENERAL RULE
CHILD’S EVIDENCE NEEDS TO BE TREATED WITH CAUTION
Chao Chong v PP [1960] – children at times Ond it difOcult to distinguish between reality and fantasy;
PP v Chan Choon Keong [1989] – Children’s evidence must be scrutinise with special care as they have the tendency to invent and
distort

COMPETENCY CORROBORATION

IS A CHILD COMPETENT TO MUST A CHILD’S EVIDENCE BE

TESTIFY? CORROBORTED?
 QUESTION 1 : IS A CHILD COMPETENT TO TESTIFY?
S. 118
All persons are competent to testify UNLESS : (the court considers)
1. the person DOES NOT UNDERSTAND the questions put to them; OR
2. CANNOT GIVE RATIONAL ANSWERS to the question
DUE TO : tender years; Extreme old age OR defective intellectual (Disease of body and mind)

TEST : Whether the child has sufficient intellectual capacity to testify

Tajuddin B Salleh [2008];

The test to determine competency :
1 – does the W able to understand the Qs put to them; and
2 - Whether the W able to give rational answers to those Qs.

Sidek B Ludan [1995]

The court will assess the child’s intellectual capacity at a preliminary inquiry or examination

Yusaini Bin Mat Adam v PP [1999]

The court must record the questions and answers during this preliminary inquiry/examination and give reasons in concluding that the child is a competent
witness or not

C/F - Mohd Fariz Afiq b Mohd Rohizi v PP [2021] – unnecessary to conduct PE if there is no reason to doubt the W’s competency
PP v Chan Wai Heng [2008] – no formal form of PE as long as the court directed his mind to competency issue; Hanafi B Ramly v PP [2015]
*in these cases, competency of the W was inferred by the fact that the W took oath, the clarity of his testimony and the W’s ability to distinguish
from truth/false
 QUESTION 2: MUST A CHILD’S
EVIDENCE BE CORROBORATED?
UNSWORN EVIDENCE
Whether a child’s evidence S. 133A
A child can either give: If the child has SUFFICIENT s. 8, Oath and Af_rmation Act
requires CORROBORATION INTELLIGENT AND UNDERSTAND
depends on the outcome of a SWORN EVIDENCE 1949
THE DUTY TO SPEAK THE
Preliminary Examination or TRUTH (the child is allowed to give unsworn
(formally or informally UNSWORN EVIDENCE evidence BUT the Judge must caution
established) her on the duty to tell the truth in
admitting any unsworn evidence)

Q : Should a child gives

UNWORN EVIDENCE or
UNSWORN EVIDENCE?
SWORN EVIDENCE
If the child UNDERSTANDS THE s. 13 & 14, Oath and Affirmation
S. 133A Act 1949
Arumugam a/l Mothiyah [1994]; NATURE AND MORAL
Sidel Bin Ludan’s case OBLIGATION OF AN OATH
(upon oath, bound to state the
Yusaini v PP [1999]
truth and can be subject to perjury)
 EVIDENCE OF A CHILD WITNESS

SWORN EVIDENCE UNSWORN EVIDENCE

No oath taken by the child. Judge allow the child to
Child will take an oath before testifying in Court give evidence without an oath but caution her on the
duty to speak the truth

S. 133A
* CORROBORATION IS MANDATORY
CORROBORATION IS NOT MANDATORY * FAILURE to give warning/ caution + failure to provide
CORROBORATION is a ground of appeal for the Accused if the
Judge considers or accept the Child’s evidence
Tham Kai Yau [1977]
* The court found the child competent to give sworn evidence What does it mean by corroboration?
* Corroboration is NOT mandatory * Must satisfy the definition in Baskerville [1916]
* As a matter of practice, CORROBORATION WARNING (CW) Ah Mee v PP [1967]
SHOULD BE GIVEN * demeanor, extreme care and consistency of the Child’s evidence
* On Facts, no CW given but it is not fatal since the Child's evidence is NOT corroboration
was corroborated Mohamed Ali v PP [1962]
Sidek’s case; Tajuddin’s case * s. 157 statement (consistency) is not corroboration per se
 SUMMARY IN DEALING WITH CHILD WITNESS
Q1 – IS THE CHILD COMPETENT TO TESTIFY? Tajuddin b Salleh [2008]

Can the child witness understands the ques8on put to her? Can the child witness gives ra8onal answers to those ques8ons?

IF THE ABOVE ARE ANSWERED IN AFFIRMATIVE :

Q2 – SHOULD THE CHILD GIVE SWORN OR UNSWORN EVIDENCE? Sidek B Ludan’s case
1⃣ Does the child has sufficient intelligent ? Does the child 2⃣ Does the child understands the nature and moral
understands the duty to speak the truth? obliga8on of an OATH?

THE OUTCOME
IF 1⃣ IS ESTABLISHED – THE CHILD SHOULD GIVE IF 2⃣ IS ESTABLISHED, THE CHILD SHOULD GIVE
UNSWORN EVIDENCE (s. 133A) SWORN EVIDENCE
 VICTIMS OF SEXUAL OFFENCES (SOV)
(CORROBORATION)
PP v Mardai [1950] – there is no rule of law that in sexual offences, the evidence of the complainant must
* Corroboration needed not be corroborated. HOWEVER, as a matter of common sense, it is unsafe to convict unless either the
because of the victim is NOT evidence of the complainant is unusually convincing or there is some corroboration of the
RELIABLE but because of the complainant's story
NATURE OF THE OFFENCE
* SOVs are vulnerable witnesses –
testimony may be motivated by other
factors such as malice, jealousy.
* Allegation of rape is easy to made Aziz b Muhamad Din [1996]; Muniandy & Anor v PP [1973]
but dif\cult to deny * Sexual complainant is a child. Corroboration becomes necessary
CORROBORATION Din v PP [1964] Balwant Singh v PP [1960]
* Sexual complainant is a mentally retarded person. Corroboration necessary.
REQUIRED AS A ‘If…, she complains of having been
raped, then both prudence and
MATTER OF practice demand that her evidence
PRUDENCE AND should be corroborates’
PRACTICE Police Complaint is an evidence of corroboration – s. 8, Illustration (j) (CONDUCT)
Delay in reporting rape :
(CORROBORATION Hairani Sulong v PP [1993]
WARNING MUST BE * Delay in reporting rape, should not be taken as evidence concoction. Evidence of delay should be
considered in light of other relevant evidence
ADMINISTERED – Ahmad Nazari v PP [2009]
Chiu Nan Hong v PP * V was a 63 y.o female rubber tapper – delay of 3 weeks after being raped twice – factors of her being
illiterate, aged, embarrassment justify the delay
[1965])

EXAMPLES OF CORROBORATION:
* James v R [1970] – medical evidence only prove sexual intercourse and CANNOT CONFIRM
consent
* Syed Abd Tahir a/l Mohamed Esmail v PP [1988] – where victim is child, medical evidence of
penetration is sufficient corroboration as consent is not needed to prove statutory rape
* R v Kerim [1988]; Aziz B Muhmad Din [1996] – medical evidence can be corroborative evidence of
rape of a child, however, if the medical evidence of rupture is not consistent with the time of rape, it
cannot corroborate allegation of rape
 CORROBORATION & SECTION 157

S. 157 - Statement of a Complainant to a Witness

COMMON LAW :
R v Baskerville – Corroboration must Karthiyayani & Anor v Lee Leong Sin
PP v Paneerselvan & Ors [1991]
be an independent evidence & Anor [1975]
- a previous statement was 'technically'
R v Whitehead [1929] - the story told – wery weak ’corroborative’ evidence
admissible
by the victim of an unlawful sexual and defeats the object that a person
- The court excluded it
intercourse case to her mother was cannot corroborate oneself
as corroboration under s 157 of the
not corroboration as it emanated
Act in the exercise of its discretion on
from the victim herself Mohamad Ali v PP [1962]
the ground that its probative value was
HOWEVER – s. 157 (reflect the – admissibility of a statement must be
outweighed by its prejudicial effect.
principle of inconsistency) distinguished from the weight attached
ti it
 ACCOMPLICE
(COMPETENCY & CORROBORATION)

Rationale of treating Accomplice evidence with caution:-

COMPETENCY
1. Accomplice has motive / interest in not telling the truth –
diverting the blame from himself to another person
2. Give favourt to the authority where this fate lies
(Tan See Boon v PP [1966]; Chong Chee Leong [2008]
WHO IS AN 3. Minimise his role and exaggerate the other in exchange
ACCOMPLICE? of a lighter sentence
4. Out of spite IS AN ACCOMPLICE A COMPETENT
Davies v DPP [1954] WITNESS?
- Person who participated in the
commission of a crime together with
the Accused Person HOWEVER, he
gives evidence as a Prosecution
Witness against the Accused Person
R v Mullins CORROBORATION
PP v Abdul Azizsou [1978]

MUST ACCOMPLICE BE
CORROBORATED?
 ACCOMPLICE

COMPETENCY CORROBORATION
HOWEVER, on credibility of an Accomplice;
S. 118 S. 114(b) – Presumption of fact that an accomplice is
UNWORTHY OF CREDIT unless his evidence is corroborated in
All persons are competent to testify UNLESS : (the court material particulars (CORROBORATION REQUIRED)
considers)
1. the person DOES NOT UNDERSTAND the questions put to
them; OR ASSESSMENT OF CREDIBILITY
2. CANNOT GIVE RATIONAL ANSWERS to the question Goh Wee Kian [2013]; Sabaruddin b Non [2005] – look at the demeanour,
manner, quality, nature and degree of accomplice evidence
Evidence of an accomplice will be admissible if it is relevant Pie Bin Chin v PP [1985] – forgetfulness/ failure to recall will not necessarily
shake the credibility or render the W’s evid to be unworthy of credit
Pathmanabhan a/l Nalliannen [2013] – credibility and impeachment

S. 133
* An Accomplice is a COMPETENT WITNESS against the Accused R v Baskerville [1916]
* Accomplice evidence can be used to CONVICT the Accused Absence of corroboration warning, conviction must be quashed
person EVENTHOUGH WITHOUT CORROBORATION Jegathesan v PP [1980]
Evidence of an accomplice is admissible even without corroboration
PP v Anwar Ibrahim (No 3) provided that corroboration warning must be administered
PP v Sarjeet Singh PP v Sarjeet Singh [1994]
 ACCESSORY AFTER THE FACT (AFF)
ACCESSORY AFTER THE FACT

Kuan Ted Fatt v PP [1985]

- an accessory after the fact cannot be an accomplice as he is not concerned with the commission of the original
crime; he had no prior knowledge that the offender intended to commit the offence charged
Harcharan Singh v PP [2005]
- Even though he is present when the crime committed, witnessed it being committed and rendered assistance in the
disposing of the body – he is not an accomplice but an active AFF

Francis Antonysamy v PP [2005]

Harcharan Singh v PP [2005] - AFF played an active role, but AFF’s evidence was corroborated by the A’s
* There is a presumption of unworthiness of his evidence similar statement and the discovery of the V’s head
to that of an accomplice, hence corroboration is required
Harcharan Singh v PP [2005]
- AFF played an active role (loosen the rope from the V’s neck and disposing the
** If AFF played an active role – his evidence must be body) BUT evidence not corroborated – appeal allowed
corroborated
** If AFF played a passive role – corroboration warning is Lawrence Masuni @ Firus B Abdullah [2018] –
- PW9 was regarded as a passive witness even though he saw the incident of
sufOcient killing and shared the loot – only corroboration warning required
 AGENT PROVOCATEUR
RATIONALE WHY EVIDENCE OF AP SHOULD
BE ALLOWED
(commonly used in drug and bribery cases): DISTINCTION BETWEEN AP AND AN INFORMER
Informers are protected under the law (E.g. DDA 1952)
Munusamy v PP [1987]
The degree of secrecy in the commission of the
- Informer only accompany and introduced PW1 to the Accused
crime requires assistance from an AP to reveal - An informer is someone who only gives information and does not take active part in the
Wan Mohd Azman v PP [2010] commission of the offence
‘…that such covert activities of these drug trafAckers
are carried out with a high degree of secrecy that, c/f Hussin b Mohamad v PP [2015}
AGENT without using this technique of surveillance and - The so-called informer introduced AP to the Accused, arranged for meetings and negotiated
PROVOCATEUR (AP) investigation, it may be impossible for anti-drugs law on behalf of the AP – the informer is NOT an informer, hence need to be called as a witness
and failure to call, s. 114(g) can be invoked
– one who provokes or enforcers to penetrate into this nefarious underworld
suggests the commission of activity and identify who are the perpetrators.’
EFFECT OF BEING AN INFORMER:
crime to another with hope that R v Mortimer (1911)
Accorded full protection under the law - identity remained anynomus and s. 114(g) cannot be
the latter will go along with his invoked
suggestion, and that person
may be convicted of the offence
DISTINCTION BETWEEN AP AND ACCOMPLICE
the AP suggested Emperor v Chaturbhuj Sahu [1911]
Wan Mohd Azman v PP [2010] * If the W has made himself an agent for the PP before committing the crime/ before
- Both parties are willing associating with the criminal – NOT an accomplice but an AP
participants in the crime * If the W only extends his aid to the PP after the offence has been committed - he is AN
committed ACCOMPLICE

Teja Singh v PP [1950]

The evidence of an AP is NOT that of an accomplice and DOES NOT REQUIRE
CORROBORATION
s. 40A(1) DDA & s. 52(1)(b) MACC Act – no presumption of unworthy of credit for
evidence of an AP
 SUMMARY
AN ACCOMPLICE AND OTHER WITNESSES/PERSONS

ACCOMPLICE – A person who commits the crime together with an Accused. He is not
charged together with the Accused but gives evidence for the PP against the accused

CO-ACCUSED PERSON
A person who involves in the commission of a crime and charged together with the Accused
person.

ACCESSORY AFTER THE FACT

A person who did not involve or assist an accused person in committing a crime but may be
involved after a crime has been completed (example – concealing the crime/disposing the
evidence)

AGENT PROVOCATEUR
a person who acts as an agent for the police or authority and works undercover in enticing and
provoking a person (later become an Accused) to commit a crime
 HOSTILE WITNESS
HOSTILE WITNESS refers to a witness who:
1 – Gives evidence that is adverse to the party who calls him
2 - Depart from his previous oral or written statement

S. 145 – Witness can be cros-examined

s. 154 – permits the party who calls the witness to ask questions akin to cross-examination during an Examination in Chief (EIC)
s. 155 – credit of the witness can be impeached

RATIONALE OF THE PRINCIPLE RELATING

TO HOSTILE WITNESS WHEN WILL A WITNESS REGARDED Munniandy v PP [1973]
AS HOSTILE To treat own’s witness as hostile by
GENERAL RULE cross-examination – confronting the
* a Witness that a party calls would normally Lim Teng Teng v PP [1998] Witness with his previous contradictory
gives evidence in his favour during The disposition of the witness which conflicts statement
Examination in Chief. A party is bound by the with the earlier statement made by him – there
evidence given by his own witness must be some material that show that the
M. Ratnavale v S Lourdenandin [1988] THE PARTY MAY PROCEED TO
witness is not speaking the truth or he has
Lim Guan Eng v PP [1998] resiled from his earlier statement IMPEACH THE CREDIT OF HIS OWN
In adversarial system, it is fundamental importance WITNESS
that a party is bound by the evidence given by its Pathmanabhan a/l Nalliannen [2013] S. 154-155
witness
 CO-ACCUSED AS A WITNESS AGAINST
THE ACCUSED PERSON
CO-ACCUSED gives evidence for the defence at the defence stage

Daud v Awang Ngah [1958]

DOES CO-ACCUSED EVIDENCE REQUIRES

CORROBORATION?

Daud v Awang Ngah [1958]

Tan Cheng Seng v PP [1948] A1, A2, A3 and A4 were charged for murdering the victim. At the defence
A Co-A giving evidence on his own behalf against the stage, A1 gave evidence implicating A2 and A3 , but consistent with the
Accused MUST NOT be regarded as an ACCOMPLICE Prosecution’s case
Held – A1 was not an accomplice and there were no rule of law that
* Rules regarding corroboration of an accomplice DOES requires his evidence be corroborated.
NOT APPLY Corroboration is NOT MANDATORY

* AS A MATTER OF PRACTICE AND PRUDENCE,

CORROBORATION WARNING MUST BE ADMINISTERED BY TE
JUDGE
THE END