Notes on Witness Evidence PART 3 PDF

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Summary

C) Child witness o Danger in putting on witness stand:  1) common knowledge and experience: child unable to distinguish between reality and fantasy  2) exposes himself to perjury o Case: Chao Chong & Ors v PP , it is matter of common knowledge that children at times find it difficult to distin...

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C) Child witness o

Danger in putting on witness stand: 

1) common knowledge and experience: child unable to distinguish between reality and fantasy

 o

2) exposes himself to perjury

Case: Chao Chong & Ors v PP , it is 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 result of observation and the result of imagination.

o

Case: Loo Chuan Huat v PP , as there were no other witnesses to the crime, the prosecution’s case rested almost entirely on the evidence of a child (who was about 11/12 years old when the crime was committed, but gave evidence four years later). The main effect of the child’s evidence was that it established that the appellant was the man who killed his mother. The accused was convicted and he appealed. The rule of prudence requires for evidence by a child to be corroborated, which means that the evidence is not to be given weight unless it is corroborated in material particulars. The rule is based on human experience that a child, unlike an adult, sometimes finds it difficult to distinguish between realities and fantasies.

o

Definition of a child: 

Section 2 of the Child Act 2001: means a person under the age of eighteen years



Section 2 of the Age of Majority Act 1971: the minority of all males and females shall cease and determine within Malaysia at the age of eighteen years and every such male and female attaining that age shall be of the age of majority.

o

Should a child give sworn or unsworn evidence? 

1) sworn evidence 

take up oath under Section 6(1)(a) of the OAA 1949: witnesses, that is to say, all persons who may be lawfully examined, or give or be required to give evidence, by or before any court or person

having, as mentioned in section 4, authority to examine such person or to receive evidence; o

2) unsworn evidence 

no need to take oath 

Section 8 of the OAA 1949: Any person who by reason of immature age ought not in the opinion of the court to be admitted to give evidence on oath or affirmation shall be admitted to give evidence after being cautioned by the court to speak the truth, the whole truth, and nothing but the truth.



Section 133A of the EA 1950: 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; and his evidence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 269 of the Criminal Procedure Code shall be deemed to be a deposition within the meaning of that section



Case: Sidek bin Ludan v PP, 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 proviso has explicitly made it a rule of law that the evidence of an unsworn child witness shall be corroborated.



In the case of a sworn child witness the old rule of prudence applies, namely 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 applies...