Accomplice - Dr Ramalinggam PDF

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Summary

Accomplice S133 of the EA 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. Illustration (b) to section 114 The court may presume that an accomplice is unworthy of credit unle...

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Accomplice S133 of the EA -

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.

Illustration (b) to section 114 -

The court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars.

Meaning of an accomplice -

Not defined in the act. However, the popular meaning is that an accomplice is a guilty associate of the accused person or a partner in the crime.

Davies v PP -

The defendant with other youths attacked another group of youths with fists. One of the youths in the other groups died subsequently of stab wounds. Six youths were charged with the murder but only the defendant was convicted. Ell was one of the six youths charged but he was convicted of the lesser charge of common assault. At the trial of the defendant, L testified for the prosecution as to the admission by the defendant of the use of knife by him. The trial judge did not warn the jury of the danger of accepting this evidence without corroboration. The Defendant’s conviction was affirmed by the court of Appeal. On Appeal to the House of Lords, it was held that in a criminal trial, where a person who is an accomplice gives evidence for the prosecution, it is the duty of the court to warn that although it may convict upon this evidence it is dangerous to do so unless it is corroborated. Secondly the court stated that this rule, although a rule of practice now has the force of law and thirdly where the judge fail to warn as above, conviction will be quashed. It is in this case where the court defined as to who an accomplice is.

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Person who, if called as witness are accomplice; i.

person who were participate 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.

Goh Khiok Phiong v R -

It was held that in deciding whether a witness should be treated as an accomplice, the trial judge should ask himself this question – “ Is there any evidence upon which I can properly rule that the witness was a participant in the offence.”

Harcharan singh v PP (COA) -

An accessory after the fact could not be an accomplice 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.

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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 required to be corroborated. In absence of such evidence, there was no evidence on which the defence could have been called.

Larence Masuni v PP -

An accessory after the fact cannot be an accomplice as he is not concerned in the commission of the original offence.

Teja Singh v PP -

An accomplice and an agent provocateur is not one and not same. An accomplice will have nexus to mens rea in relation to the offence. The mens rea will be absent for agent provocateur.

Sarjeet Singh v PP -

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.

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The main justification for the need for corroboration of an accomplice is – that he has motive of his own as he will minimise his role and maximise others role in the crime.

Tan See Boon v PP -

An accomplice is an infamous persons 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.

Bhudonsi Sahu v The King -

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 associated and who had placed himself in a position in which he can hardly fail to have a strong bias in favour 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.

PP v Mohd Azam bin Basiron -

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.

R v Baskerville -

Baskerville had been convicted of having committed acts of gross indecency with two boys. These boys were accomplices because they were freely consenting to the acts and there was no use of force.

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Held 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 at 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 should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence….this rule of practice has become virtually equivalent to the rule of law….if after the proper caution by the Judge the jury nevertheless convict the prisoner, this Court will not quash the conviction merely upon the ground that accomplice's testimony was uncorroborated"

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.

Attan bin Ghani v PP -

Summarized the corroboration rules as i.

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.

ii.

the evidence must come from independent sources.

iii.

it must implicate the accused in the material particulars. It confirms the accused person committed the crime.

Lim Yam Hong v PP -

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 the corroboration.

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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 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 consider it is safe to convict without corroboration.

Ng Kok Lian v PP -

There can be no automatic application of the rule as to the accomplice’s evidence to any witness nor could be 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.

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In this case here he didn’t use the money so there is no mens rea.

Ng Yau Thai v PP -

Because they were accomplices, the Court may presume under Section 114, illustration (b) of EA, that their evidence is unworthy of credit unless they were corroborated in material particulars. Then the Magistrate refer to the provision of s133 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 Magistrate stated that she accepted the evidence of the accomplices and gave reasons 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 because they would be ordered to return the baby. Mahmud Jamili bin Zaudin v PP -

The evidence of one accomplice cannot be used to corroborate the evidence of another accomplice

PP v DSAI -

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 not willingly participate in the offence but acted under a certain form of pressure.

PP v Norezam Apandy -

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....