Law of Evidence in Kenya PDF

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CORROBORATION1 OVERVIEWCorroboration evidence is one area of evidence that has got a lot of intricacies. Taking into considerations such challenges and complexities we have covered the meaning of corroboration, how the judges and books have defined it, the essentials of corroboration: what qualify s...

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CORROBORATION

1.0 OVERVIEW Corroboration evidence is one area of evidence that has got a lot of intricacies. Taking into considerations such challenges and complexities we have covered the meaning of corroboration, how the judges and books have defined it, the essentials of corroboration: what qualify something to be a corroborating evidence, what evidence can be used to corroborate, two types of corroboration, application of corroboration in three instances, the relevance of corroboration now in law; is it still necessary, advent of technology and scientific evidence and the criminal amendment bill, constitutional issues and corroboration evidence; is it a bar to justice process?

2.0 INTRODUCTION Corroboration is not a recent inclusion in evidence, it has been in existence since antiquity making it one of the oldest evidence laws but the most complicated. As a general rule there is no requirement that evidence must be corroborated for someone to be interdicted to have committed or omitted ascertain act. The truth is that such evidence are reliable enough to proceed since they are credible, however, this is done to achieve fair trial and accurate judgment. There are however some statutes which require corroboration and where the jury need to be warned, these make exceptional cases. Even though the general rule state that, there is propensity to acquittals when corroboration is lacking.

2.1 Literal Meaning Corroboration as a word means to support or confirm or to strengthen. It is which rule of evidence which states that one witness is insufficient, derived from Latin maxim testisunus testis nullus (one witness is no witness.) To strengthen (an opinion, statement, argument, etc.) by concurrent or agreeing statements or evidence; to make more sure or certain; to support, confirm: said a. of a person – Oxford Dictionary. Merriam-Webster Online: corroboration is to help prove by providing information or evidence.

2.2 Legal and contextual meaning The legal meaning as defined by books and cases is where the whole challenges emerge. According to J.D Heydon1, corroboration is evidence tending to confirm some fact of which other evidence is given. G.D Nokes2, corroboration is confirmatory or supporting evidence on a matter on which other evidence is adduced. Despite the two definitions one can still not make a conclusion on what corroboration is or entail. For that reason we look into the cases. The Rex v Baskerville3 “we hold that evidence in corroboration must be independent testimony which affects the accused by connecting him or tending to connect him with the crime. In other words, it must be evidence which implicates him with the crime, 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.” Lord Reading C.J. The above was reiterated in the case of Mukungu v Republic (2003) A.H.L.R (KeCA 2003). “The word corroboration by itself means no more than evidence tending to confirm other. In my opinion, evidence which is (a) Admissible and (b) Relevant to evidence requiring corroboration and, if believed, confirming it in required particulars, is capable of being corroboration of that evidence and, when believed, is in fact such corroboration.” Lord Hailsham.4 From the cases and books we can confirm that corroboration is, a credible (relevant and admissible) evidence from an independent source which tends to support or confirm a credible (relevant and admissible) evidence that has been given or is yet to be given before a court and that it implicates the defendant and not to confirm the commission of a certain act. The last two form the essential facts or the facta probanda that corroboration must prove (that the accused did it and that the crime was committed)

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1984 Evidence: cases and materials at page 67 Cockles cases and statutes on evidence at page 382 3 1916 2KB at page 658 4 D.P.P v Kilbourne 2

The definition above confines corroboration to certain essentials and this brings about the complexity in issue of corroboration. The judges have struggled to conform to all the essentials and for some omission or another the cases have been appealed successfully.

3.0 ESSENTIALS OF CORROBORATION EVIDENCE 3.1 Corroboration must come from an independent source. The following essential is mainly taken to avoid the cases where the person who gives evidence keeps on supporting it by herself/himself but from different sources but with her/him as the creator of all. If such can happen then it will cause an injustice to the defence since the person can fabricate the information which keep corroborating each other. Rex v Whitehead5 in this case the accused was charged with having unlawful intercourse with a girl aged 16 years, but she mentioned the incident first time weeks later when she was pregnant. Lord Hewart C.J rejecting the argument that such amounted to corroboration stated, “the girl cannot corroborate herself, otherwise it is only necessary for her to repeat her story some twenty five times, to get twenty five corroborations of it.” The all argument is that, the victim is the one who made or communicated such information to be relied upon as corroboration. For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible by section 35 of this Act shall not be treated as corroboration of evidence given by the maker of the statement.6The case where the victim shows some kind of distress has been a matter of concern whether it is to be accepted as an independent source or not. In R V Chauham7, in that case the defendant was charged with indecent assault on a woman. The complainants extricated herself and ran into lavatory, where she was observed by a fellow employee who had heard her cry. The defendant admitted that he had been with the complainant but denied any wrong doing and said that the complainant had been behaving normally. The trial judge left the complaint distress to the jury as potentially corroboration of her evidence28. On appeal, the court of Appeal went out of it way to praise the clarity of the judge‟s summing up in this regard and held that he had right to permit the

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1929 1K.B at page 99 Section 32 (2) Evidence Act cap 80 Laws of Kenya 7 [1999 18]7 Ecr APP R 232, Critical Analysis of Corroboration under the Nigerian Law of Evidence by Kareem Rasheedat Temitope 6

jury to consider the complaint‟s visible. A different result was reached in the case of R v Redpath8 Lord Parker C.J pointed out that in some cases for example where the distress is no more than part and parcel of a recent complaint made by a girl to her mother, the jury should be directed to attach little or no weight to it. Indeed it is submitted that such a case, even where the distress is witnessed by an independent person, the evidence lacks the quality of independence necessary for potentially corroborative evidence and should be left to the jury as such. The general feeling about independent observer is that it is not admissible as corroboration since it does not implicate the accused and the few cases are exceptions

3.2 Corroboration must implicate the accused. The evidence must clearly link the accused with the crime but not that such an act occurred. Some evidence may be given that shows the act happened but does not link accused with such an act. This is what is called material particular; a fact which in the circumstances of the case and the issue raised in it, is material to the guilt or innocence of the accused of the offence charged. Olaleye V. State (1970) 1ALL NLR 300 In that case, a man rape a girl of 14 years the girl was examine and was found to have the same gonorrhea found in the man accused of the rape. The judge held that the presence of the same type of gonorrhea in the girl is enough as circumstantial corroborative evidence.9 The evidence in this case connects the accused with the act. R v Ogendo10 the accused also raped a girl and the medical evidence showed that the accused suffered from same sexually transmitted infection as victim. This was held to be corroborating.

3.3 Corroborating and evidence to be corroborated evidence must be credible. The evidence produced for corroboration should be relevant and admissible for it to support the evidence to be corroborated, any evidence that is that is not relevant and admissible will not corroborate. Republic v Jipkering arap kegey11 it was held, no amount of corroboration can render an incredible evidence credible, it does not matter the amount of evidence the D.P.P, plaintiff or Defence produces but the relevance of such is that that matters. B.K v Republic12 the 8

(1962)46 Cr APP R 319,312

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Critical Analysis of Corroboration under the Nigerian Law of Evidence by Kareem Rasheedat Temitope

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(1940) 10 KLR 25 O.C.K and company advocates on corroborating evidence at www.ockadvocates.com/2013/04/corroborationof-witnessesewvidence-law-ii/ 12 Cr App no 104 (200) H.C Cr App no 197 (1999) eKLR 11

accused had been charged for indecent assault under s 144 of the penal code. The conviction was based on the evidence of doctor who filled a P3 form but was not called to testify as a corroboration of witness‟ evidence. The court of appeal quashed the conviction has the evidence that was relied upon as corroboration was itself in doubt as it was simple hearsay. The case of R v Christie the judge rejected the idea that information given by boy to police and mother could corroborate the boy‟s evidence. The other rule that has been created is that the person corroborating must not be one that his evidence also need to be corroborated like two minors who don‟t understand the implication of oath cannot corroborate.

3.4 It confirms or supports the evidence given or that will be given. Corroboration supports the evidence that is given or that will be given. For example in cases of mutual corroboration the first witness may corroborate the next witness and the next witness may corroborate the first witness too, therefore it is not obvious that it comes after the main evidence.

4.0 WHAT CAN CONSTITUTE CORROBORATION Any kind of evidence which qualify above essentials can be a corroborating evidence. Corroboration can be done through circumstantial evidence case of Ongweya v. Republic.13In Ali v Republic (2008) 1KLR (G&F) it was held the commission of a sexual offence can be properly corroborated by circumstantial evidence. The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence. Corroboration can also result from the conduct of the accused himself. Silence can amount to corroboration in some cases. This is mainly at the discretion of the court but not so common but it will rarely occur and may result to miscarriage of justice. The accused has the right to remain silent, and not to testify during proceedings.14 Instead of being used as corroboration it has been considered to be against the party who does not talk in that case. It has been a question as to whether lies constitute corroboration, when the accused person as lied and it comes clear later can it be used against him. In R v chapman it was held that lies could amount to corroboration. “Corroboration may well be found in the evidence of the accused 13

[1964] EA 129

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Article 50 (2)(i) Constitution of Kenya 2010

person; but that is a different matter, for there confirmation comes, if at all, from what is said, and not from the falsity of what is said. It is, of course, correct to say that these circumstances – the failure to give evidence or to give false evidence – may bear against an accused and assist in his conviction if there is other material sufficient to sustain a verdict against him. But if the other material is insufficient either in quality or extent they cannot be used as a make-weight15” Lord Macdermott. R v Dowley the appellant was convicted of rape of a woman who he was on process of divorcing, he had said earlier that she had not seen the woman but later agreed that he had seen her and had sex plays with her but was afraid to not to irate the woman he was currently in relationship with. The judge had convicted him on basis that lie amounted to corroboration. The appeal was allowed and conviction quashed.

5.0 TYPES OF CORROBORATION MUTUAL CORROBORATION; this happens where several parties or two parties giving evidence that require corroboration, corroborate the evidence inter se. mutual corroboration is always permissible in law except in case of accomplices being „participes criminis‟ in the offence charged16 Javed v Republic (2002) K.L.R Cr App No 966 the appellant was charged with some narcotics, he appealed that the evidence he was convicted upon was uncorroborated, the judge held that the two policemen had corroborated each other‟s evidence. CUMULATIVE CORROBORATION; this are several portion of evidence that are brought by very many independent sources. The judge takes them all and then they are accreted if they are connecting to form corroboration or the jury attach weight to each. Accretion may make several evidences that were not corroborating to make a corroboration. The instances may be connected to come up with a good evidence at the end. The Earl of Reading C.J “In this case, I come to the conclusion that there is in law, evidence upon which the justice could decide that the respondent‟s testimony was corroborated in some material particular by other evidence. Each fact found by the justice as tending to corroborate the respondent‟s evidence may by itself be sufficient as corroboration but the cumulative effect of the evidence regarded not separately but collectively may be and I think in this case is sufficient……..”

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TumeHole Bereng v R Critical Analysis of Corroboration under the Nigerian Law of Evidence by Kareem Rasheedat Temitope

IDENTIFICATION CASES; this is where witness identification at first instances is considered as corroboration

6.0 CONSTITUTION AND CORROBORATION EVIDENCE Corroboration is usually required to protect the accused from suspicious evidence and avoid the risk of conviction on fabricated evidence. Article 50 of constitution provides that the accused must be given a fair trial. The law will always be try and protect the accused “it is better to let 99 guilty people free than have one innocent man incarcerated.” This just tell us that in case evidence is suspicious, it works at the accused advantage. Requiring corroboration does not also seem fair to the victims who do not have an independent confirmatory evidence. In such a case it will result to an injustice to the person who cannot get supporting evidence despite the credibility of his own evidence. Under article 50 (9) the parliament shall enact legislation providing for protection of rights and welfare of victims of offences, this can be done by allowing or accepting uncorroborated evidence instead of quashing convictions for lack of corroboration. Every person has equal rights before the law and therefore it should be applied mutually. Silence has been said to amount to corroboration but the constitution states that the accused has the right to remain silent and not testify during the proceedings.17 In such a case corroboration will be unconstitutional and invalid.

7.0 RELEVANCE OF CORROBORATION The question many people keep asking themselves is whether the modern society still needs to corroborate evidence. Some people have felt that the law of corroboration is obsolete and should be done away with especially after emergence of modern scientific evidence. They don‟t understand why it still existing or why such evidences are also corroborated. The other group feel that corroboration still has relevance and deleting it would result to miscarriage of justice. They although recommend that it should be reviewed so that certainty is reached.

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Article 50 (2) (i) constitution of Kenya 2010

7.1 Why it should be abolished. i) Corroboration especially with such stringent rules can sometimes act as an obstruction of justice especially in sexual offences where it is hard to obtain since they are done away from public. ii) In criminal cases the accused is already protected with the standard of proof which is beyond reasonable doubt. For such reasons, the jury does not require any more evidence. It is upon them to analyze the evidence given if it reaches the threshold. ii) The law of throwing out cases on grounds of technicality has been found to be bad law. Throwing a case on grounds of lack of corroboration is just but same to technicality. Corroboration results into miscarriage of justice on the persons who are required to bring it being either defence or applicants. iii) Corroboration should be relaxed on more persuasive scientific evidences such as DNA which are mostly accurate given the manner they are reached at. It is also likely to save the courts embarrassments from the many successful appeals on grounds of corroboration, it will also make the public to have more faith on the judicial system and also erase the existing confusion as to corroboration. iv) Corroboration is evidence based on quantity, since evidence A is in doubt we need B to confirm or support. Instead the judge should just test the reliability of the existing evidence and convict or acquit on such test. v) The manner in which some crimes are committed make it hard to find corroboration. Example is rape cases the penetration without consent, this are planned crimes, happen in exclusion of people, which we might not find any other evidence to confirm. vi) Use corroboration make us view evidence in terms of quantity and not quality Weiller v United States18 where Black J said "Our system of justice rests on the general assumption that the truth is not to be determined merely by the number of witnesses on each side of a controversy. In gauging the truth of conflicting evidence, a jury has no simple formulation of weights and measures upon which to rely. The touchstone is always credibility; the ultimate measure of testimonial worth is quality and not quantity. Triers of fact in our fact-finding

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(1945) 323 US 606 at 608.

tribunals are, with rare exceptions, free in the exercise of their honest judgment, to prefer the testimony of a single witness to that of many".

7.2 Why we must retain corroboration Accessing credibility or reliability of evidence will be so difficult without corroboration. It might in itself result in an injustice. Fabrications can pass the tests successfully. The standard of proof beyond reasonable doubts in criminal cases can barely be achieved without corroboration which is to clear all the doubts surrounding a given evidence by confirming those particular facts. Sometimes to determine the quality of some evidence, you need quantity to confirm or support the position whether quality is enough to proceed. Corroboration is not something very hard to get since it can be gotten from circumstances of the case or even from a person evidence is given against. The removal of corroboration would just slow the justice process. There will be requirement of series of investigations to come up with evidences. The process will be too long given that there is a possibility of interference with the evidences. The country will also have to invest on the criminal justice system. The victims will likely be traumatized when they realize that the evidence they have given is not enough to convict the accused. It will most likely result into more acquittals than convictions. No matter which test the court takes it will always fail to reach the standard of proof required.

8.0 APPLICATION OF CORROBORATION EVIDENCE Lord Reading “The test of applicability to determine the nature and extent of the corrobor...