Chapter 11 Corroboration-evidence notes PDF

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ChapterCorroboration11 INTRODUCTION[11] A party to a proceeding has to adduce credible and reliable evidence in order to discharge his burden. Credibility and reliability determines the weight attached to particular evidence. Determination of credibility and reliability is for the court to decide ba...

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Chapter11

Corroboration 11.1 INTRODUCTION [11.001] A party to a proceeding has to adduce credible and reliable evidence in order to discharge his burden. Credibility and reliability determines the weight attached to particular evidence. Determination of credibility and reliability is for the court to decide based on factors such as whether the evidence is corroborated or not, especially when dealing with witnesses of doubtful credibility in criminal proceedings. Therefore, an oral testimony of a witness may sometimes require corroboration in order to be credible. Corroboration or lack of it, however, only affects the weight attached to that evidence. The witness’s evidence will remain relevant and admissible though it may not have been corroborated. [11.002] Historically, the rules of corroboration were introduced and developed to ensure that the jury would determine cases appropriately so as to avoid convictions based on insufficient or unreliable evidence. In Malaysia, section 134 of the Evidence Act 1950 provides that no particular number of witnesses shall, in any case, be required for the proof of any fact. Therefore, the testimony of a single witness, if believed, is sufficient to establish any fact. The court may legally act on the testimony of a single witness, even though uncorroborated. In essence, this provision follows the maxim that evidence is to be weighed and not to be counted. It was held in the case of Anil Phukan v State of Assam1 that if a single witness is entitled to full credit, it may be sufficient for a decision. The court also held that one credible witness outweighs any number of other witnesses. In this case however, the court acquitted the accused because the witness was one of doubtful character. [11.003] Corroboration is normally required in criminal proceedings. This is because the accused will be convicted if the prosecution can prove the case against him. The conviction may be in the form of a fine (which is not severe compared to imprisonment, whipping or a death

1 AIR 1993 SC 1462; the same principle can also be found in the case of Vadivelu Thevar v State of Madras AIR 1957 SC 614. However, it is to be noted that there are several statutes, particularly in England, forbidding convictions on the testimony of a single witness – see for examplesection 13 of the UK Perjury Act 1911 and its application in the case of R v Peach [1990] 2 WLR 976.

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sentence), but the accused carries with him a criminal record, which may affect his future prospect of employment, marriage, etc. In comparison, a defendant in a civil trial is generally liable to pay damages (i.e. if damages is the remedy sought) if the plaintiff is able to prove the case against defendant. Thus, the requirement of corroboration stems more from criminal proceedings rather than in civil proceedings. [11.004] Although the need for corroboration is less in civil proceedings, the case of Karthiyayani & Anor v Lee Leong Sin & Anor2 illustrates its application in a civil trial. In this case, the appellant as the administrator of the deceased’s estate sued the first respondent for negligence in an accident claim. The deceased was a passenger of a car driven by the respondent. The respondent claimed that the accident could not have been avoided because a lorry had encroached into their path with the headlights blinding him. The trial court dismissed the appellant’s claim on the ground that the respondent’s testimony had been successfully corroborated by his previous consistent statement made at an inquest and to the police. On appeal, the Federal Court held that the respondent, being an interested witness, required his evidence to be corroborated and his former statement only amounted to a very weak type of corroborative evidence. Accordingly, the appeal of the appellant was allowed against the first respondent. [11.005]  Therefore, this chapter will look at the law relating to corroboration in general.

11.2 WHAT IS CORROBORATION? [11.006] As stated earlier, corroboration denotes nothing more than a confirmation or any supportive evidence, which confirms other evidence. The principle enunciated from Baskerville consists of several basic elements; it requires the corroborating evidence to be: a)

independent;

b)

relevant to the facts in issue or relevant facts;

c)

credible;

d)

admissible; and

e)

it must implicate the accused person in a material particular, i.e. a crime is committed, and it is the accused who committed the crime. 2 [1975] 1 MLJ 119.

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[11.007] Thus, corroboration evidence must itself be either direct or circumstantial in nature and it has to be admissible. Baskerville was approved and followed in various local cases such as Mohammad binAbdullah v PP,3 PP vMohdAzam bin Basiron&Anor,4 TN Nathan v PP, 5 Yap Ee Kong & Anor v PP, 6 Thavanathan a/l Balasubramaniam v PP7 and Attan bin Abdul Gani v PP.8 The case of Brabakaran v PP9 further emphasises that corroborative evidence need not necessarily be restricted to the oral evidence of an independent witness but can include established facts.10 [11.008]  Hence, if the testimony of a witness requires corroboration, all that needs to be proved is fact or facts, which may support that testimony. For example, if a woman is raped by the accused, the corroborative evidence may be in the form of medical evidence, which clearly shows penetration without consent. It can also be the DNA evidence, which indicates the identity of the accused. Alternatively, an eyewitness testimony can also corroborate the complainant’s evidence. All that is required is supportive evidence to confirm the testimony of a particular witness.

11.3 FORMS OF CORROBORATION [11.009] The law for the requirement of corroboration has long been developed, either by introduction of the corroboration rule in statutes or consistent insistence by judicial decisions for the need of corroboration. Corroboration in its strict legal sense takes one of the two forms, namely: a)

Corroboration as a matter of law; and

b)

Corroboration as a matter of practice or prudence.

11.3.1 Corroboration as a matter of law [11.010] Corroboration as a matter of law is an insistence of the need of corroboration, which is imposed by the introduction of certain provisions in statute, which requires corroboration to be provided. In such instances, 3 4 5 6 7 8 9 10

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[2011] 4 MLJ 54. [2010] AMEJ 0650; [2011] 3 MLJ 741. [1978] 1 MLJ 134. [1981] 1 MLJ 144. [1997] 3 AMR 2289; [1997] 2 MLJ 401; [1997] 3 CLJ 150 (SC). [1970] 2 MLJ 143. [1966] 1 MLJ 64. As per Ong Hock Thye FJ in BrabakaranvPP [1966] 1 MLJ 64.

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a judge in deciding a case has to take into account whether the witness has been sufficiently corroborated by other independent evidence before the court is allowed to rely on his evidence. [11.011] Section 133A of the Evidence Act 1950 is one example. It provides that if a child gives unsworn evidence on behalf of the prosecution and the evidence is not corroborated, the accused shall not be liable to conviction based upon such evidence. [11.012] Corroboration as a matter of law is also required in certain presumptions. For example, section 51 of the Malaysian Anti-Corruption Commission Act 2009 (Act 694) provides that evidence may be brought to the fact that the accused, his relative or agent at or about the same time of the commission of the offence held any property or entered into any dealing which the accused is unable to satisfactorily account the consideration. It further provides that the court shall presume the existence of that fact (if proved) as corroborative evidence of the commission of the offence under the Act. [11.013] There are also instances where the rule is interpreted in the negative, in the sense that it is deemed to include a situation where the conviction is considered not illegal if it proceeds or is based upon uncorroborated evidence of a particular type of witness, which may as a matter of practice and prudence originally require corroboration. [11.014] For example, section 52(2) of the Malaysian Anti-Corruption Commission Act 2009 provides that a conviction for an offence under the Act is not illegal if it is based on uncorroborated evidence of an accomplice or agent provocateur. It further provides that the conviction also cannot be set aside merely on the ground that the court which tried the case had failed to refer to its ground of judgment the need to warn itself the danger of convicting the accused based upon uncorroborated evidence of an accomplice or agent provocateur. [11.015] Based on the above examples, it is safe to say that if a particular statute governing the offence provides for special or specific rules relating to corroboration, then the judge has no discretion to insist or dispense with the need for corroboration.

11.3.2 Corroboration as a matter of practice and prudence [11.016] Corroboration as a matter of practice and prudence is normally derived from consistent judicial decisions. The need for corroboration of this form is not mandatory. It is only a rule of prudence where the judge exercises a reasonable caution in relying upon uncorroborated

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evidence of a witness. The rule of prudence was developed to insist that corroboration is considered upon the evidence from potentially “unreliable witnesses”. These witnesses may include: a)

Accomplices;

b)

Children; and

c)

Complainants in sexual cases.

[11.017] The list is, however, not exhaustive. The court may exercise its discretion in insisting corroboration for other categories of witnesses. In a criminal trial, the court is legally allowed to convict the accused based on the testimony of a particular witness even in the absence of corroborative evidence. At common law, the judge exercises this duty where he has to warn the jury to exercise caution before acting upon the unsupported evidence of a witness. In a non-jury trial like Malaysia, the court is bound to at least warn itself of the danger of convicting the accused in the absence of corroborative evidence. [11.018] The court in Ng Yau Thai v PP,11 on the issue of uncorroborated evidence of an accomplice, stated how the corroboration warning should be given: 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 has to 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. Rather must the good sense of the matter be expounded with clarity and in the setting of a particular case.12

[11.019] A similar approach was also found in BerengGriffithLerotholi& Ors v The King13 where Lord Donovan in his dictum stated that: 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.14

11 12 13 14

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[1987] 2 MLJ 214. Ibid, at 216. [1950] AC 11. Ibid, at 43.

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11.4 ISSUES OF CORROBORATION FOR CERTAIN CATEGORIES OF WITNESSES [11.020] As stated earlier, the rules of corroboration do not apply to all witnesses. In short, corroboration may only mean that it would be prudent for the court to consider the danger of relying on a particular witness’s testimony in the absence of supporting evidence. As stated above, the accused may be convicted on the evidence of a single witness if his evidence sufficiently establishes all the elements of the offence beyond reasonable doubt. However, the court in this situation must scrutinise the evidence with great care and take into account the inherent dangers of convicting the accused in such circumstances.

11.4.1 Child witness [11.021] The fact that a child may be competent to give evidence because he is able to understand questions and give rational answers does not necessarily mean that his evidence is reliable.15 It is a matter of common knowledge that children at times may find it difficult to distinguish between reality and fantasy. This has been decided in the case of Chao Chong v Ors v PP16 where the court held: One reason why children’s evidence is regarded with suspicion is that there is always the danger that a child may not fully understand the effect of taking an oath. In this country where evidence is taken on affirmation that consideration loses much of its force. 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.17

[11.022] The procedure is once a child has been determined to be a competent witness according to section 118 of the Evidence Act 1950, the next matter to be resolved is whether the child should give sworn or unsworn testimony. This is crucial to be determined because different corroboration rules will apply. The test of whether a child should give sworn evidence or not depends on whether the child understands the nature of an oath and has sufficient appreciation of the oath over and above the duty of telling the truth in an ordinary daily conversation. [11.023] The test as stated above was illustrated in the case of R v Hayes.18 In this case, the appellant claimed that if the witness (a boy aged 12) has 15 16 17 18

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Some discussion on the evidence of a child can be found in Chapter 9. [1960] 1 MLJ 238. Ibid, at 240. (1977) 64 Cr App R 194.

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no religious belief, he should not have been sworn. The court held that whether a child believe in the existence of God or not, has little or no role at all in determining whether he should be sworn. Bride LJ laid down the correct test to be applied as to whether a child should be sworn or not. The Lord Justice stated that: The important consideration we think, when a judge has to decide whether a child should properly be sworn, is whether the child has 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.19

[11.024] If the child does not understand the nature of an oath, he may give unsworn evidence, provided he understands at least the duty of speaking the truth.20

Child giving unsworn evidence in court:corroboration is mandatory as a matter of law [11.025] In relation to the requirement of corroboration, if the child gives unsworn testimony, the proviso of section 133A states that a conviction based upon the unsworn evidence of a child which is not corroborated is illegal. Corroboration is therefore mandatory. [11.026] To illustrate, the case of MohdZukibinAli@MohamadvPP21 can be referred to. Here, the witness was a young girl with an intellectual disability; hence supposedly she should not be allowed to give evidence on oath upon determination at the preliminary inquiry. On appeal, the court stated that since the credibility of the child’s evidence was doubtful and unreliable, her evidence required corroboration. Without corroboration her evidence was unsafe to be accepted and ought to be rejected. This case followed the decision in Aziz bin Mohamed v PP,22 DPP v Kilbourne,23 Chiu Nan Hong v PP,24 Ah Mee v PP,25 Muniandy & Anor v PP26 and SablibinAdin&OrsvPP27 that makes it mandatory for corroboration of unsworn evidence of a child as emphasised in section 133A of the Evidence Act 1950.

19 20 21 22 23 24 25 26 27

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Ibid, at 196. Refer to Chapter 9. [2012] 2 AMR 327; [2010] MLJU 1320. [1997] 1 CLJ (Supp) 523. [1973] 1 All ER 440. [1965] 1 MLJ 40. [1967] 1 MLJ 220. [1973] 1 MLJ 179. [1978] 1 MLJ 210 (FC).

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[11.027] With regard to whether mutual corroboration between children giving unsworn evidence is allowed or not, the court in the case of DPP v Hester28 referred to the construction of “some other material evidence” and held that mutual corroboration between children giving unsworn evidence did not fall within the definition of “material evidence”. Thus, the unsworn testimony of a child cannot be corroborated by another unsworn testimony of a child. It may however be corroborated by a sworn testimony of a child.

Child giving sworn evidence in court:corroboration is needed as a matter of prudence and practice and not as a matter of law [11.028] When a child gives sworn evidence in court, corroboration of the child’s evidence is not mandatory. However, the court should administer a corroboration warning when assessing the sworn evidence of the child. [11.029] Abdul Malik Ishak J in SidekbinLudanvPP29 stated that: 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 (PPvMohdNoorbinAbdullah [1992] 1 CLJ 702). This amendment distinguishes between the testimony of a sworn and unsworn child witness. In the case of 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.30

[11.030] From this case, it was held that if the child gives sworn evidence, corroboration is required only as a matter of practice and prudence. This means that the judge has discretion in dispensing with the need for corroboration. If this is done, a corroboration warning must be administered before the accused is convicted. Failure to administer the warning is a ground for appeal. [11.031] In the case of Tham Kai Yau & Ors v PP,31 the court in this case found that the child was a competent witness and understood the nature and consequences of giving evidence under oath. The court held that in the case of a child giving sworn evidence, corroboration is not mandatory but a corroboration warning must be administered before the accused

28 29 30 31

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[1973] AC 296; [1972] 3 All ER 1056. [1995] 1 AMR 722; [1995] 3 MLJ 178. [1995] 3 MLJ 178 at 183. [1977] 1 MLJ 174.

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is convicted based on the evidence of the child. No such corroboration warning was given in this case by the trial judge. On appeal, the court held that the corroboration warning in this case was not fatal because the sworn testimony of the child had indeed been corroborated by other evidence. [11.032] A similar decision was reached in the cases of TajudinbinSalleh v PP,32 PPvMohamadTerangb...