Wednesday, 7 January 2015

06:42 - 1 comment

Corroboration (Required by Law & Practice) & Child Witnesses



CORRBORATION ( CHILD WITNESSES)
Corroboration required by law when dealing with child witnesses.

CORROBORATION REQUIRED BY LAW AND BY PRACTICE.

-             Corroborative required by law: there must be corroboration evidence before there can be conviction
-                      the court cannot convict without corroborating evidence
-                      If it does the conviction will be quashed
-                      Corroborating evidence is mandatory
-                      Corroborating evidence is mandatory
-                      Example: unsworn evidence of a child witness.

The warning is mandatory and you can still convict even if there are no corroborative evidence in a situation you are satisfied it is beyond BRD. You must warn yourself of the risk, but looking at entire case if convinces beyond reasonable doubt, it must be clearly stated in the judgment. You can still convict without corroborating evidence.

So which is more fatal? When corroboration required by law more strict compared to the one with practice. Corroborative is required by law for unsworn evidence of a child witness and if sworn evidence required only for matter of practice and prudence.

-             what is required is for the court to be on guard to the risks involved in convicting without corroborating evidence
-                      The court must war itself of the risks involved and the need for caution (mandatory)
-             Provided the warning has been given the judge can go on to convict on uncorroborated evidence provided he is satisfied that the case has been proved BRD.
-                      Mandatory for sexual offences.



1. R v Baskerville
-                      provides for what it meant by corrborating evidence
-                      must be independent
-                      must implicate the accused
-                      must show that crime was committed
-                      must show that the crime was committed by the accused
-                      the definition of corroboration has been taken into Malaysia law.

2. Dowse v AG [1961]
-                      we will apply Baskerville

3. Thavanathan Balansubramaniam
-                      another Malaysian case giving definition of what is corroborative evidence
-                      Changes a little bit of Baskerville principle but the same elements to be proven.
-                      corroborating evidence must confirm the evidence requiring corroboration
-                      can be direct or circumstantial evidence but admissible in its form
-                      must be independent
-                      Crime committed by accused.

There are many other cases discussing on what is corroborative but not necessary to cite all cases because at the end of the day reflects the principle in Baskerville.

WHAT AMOUNTS TO CORRBORATING EVIDENCE

A.        Distress
-             Distress/crying of victim especially in sexual offences where victim was seen to be crying or very distress it can amount to corroboration
-             But we must be cautious, the court will exercise caution, because sometimes you can fake the cry and can cry on demand.
-             Crying and distress can be stimulated.
-             the court will decide what can be accepted and not

4. R v Redpath [1962]
-             the principle where crying and distress can be accepted as corroboration but court will exercise caution
-             here there was a total stranger unconnected to the victim saw victim crying after the accused been around the victim and he had seen the victim crying unknown to the victim
-             when he saw her crying, she didn’t know he was observing her so it is understood that this is real crying
-             Hence totally independent and an observation of high quality corroboration.

5. R v Wilson [1973]
-             here crying alone in the bedroom, mum saw her crying and asked why, she refused to tell mother
-                      the mother here called as witness and use as corroboration
-             But based on facts, here not fatal crying, looks genuine and why didn’t she tell the mother what happened is because she was ashamed what has been done to her.
-                      Hence not rejected.

6. R v Chauhan [1981]
-             victim had been alone in office with accused and a short while later the victim seen running out of the office crying
-             another collegaue in the same building saw and followed victim and asked her what happened
-                      she was so distress crying and said the accused had attacked her
-                      Question to court can this amount to corroboration? Yes, therefore can be brought it.

7. Tan Kin Seng [1997]
-                      This is the case to show those principles brought in to Malaysian law
-             signs of distress & crying can amount to corroboration but court must be cautious cause can be fake

*sometimes she may cry because in trouble and of her own fault so must be cautious about it.

B. MEDICAL EVIDENCE
-                      today the most common form would be DNA and other forms of physical evidence
for example injuries suffered by victim and any other physical injuries suffered by victim
-             although physical evidence can corroborate but again court must exercise caution, just because accused DNA found on victim, it is not conclusive evidence of rape because only matter of intercourse but don’t established lack of consent
-                      Need to look at other types of injuries as well suffered by victim.

8. James v R [1970]
-             court made clear that victim has intercourse near to time of consent but not by itselfbe conclusive

9. Syed Abu Tahir v PP [1988]
-             when it comes to statutory rape, consent irrelevant as long as you can corroborate intercourse
-                      You can also identify the identity of attacker so now easier in that sense.

10. Aziz bin Muhamad Din v PP [1996]
-             not necessary to be explained here (was done in paper 1)
-             here there is a problem because of the medical evidence coming in
-             There are 2 doctors examining victim and going to put a date into her...
-             first doctor came into the court and testify it could have happened one week before time he had examined her but this did not tally with the charge because the charge was that the accused attacked her 4 days before doctor examined her (he say one week before examine her)
-             this would mean the doctor’s testimony can’t corroborate because dates don’t match
-         then there is the second doctor who said happened between 48 hours to 3 months from the date he examined her. (totally unhelpful)
-         Why? Remember this doctor also examined her around the same time and said 48 hours - 3 months and the charge is 4 days before examined her
-         That means cannot corroborate because if you look at the timeline, it does not tally.

CONDITION OF ACCUSED
-             In the case of violent attack accused himself may have been injured and therefore can have DNA etc so all of these could also act as corroborating evidence.

CONDUCT OF THE ACCUSED
-             example trying to leave country after finding out police investigating this issue then can use as corroborating
-             But must cross refer to what done in trimester, conduct of accused relevant and we can bring in explanation to accused conduct under section 9.

11. Dowse v AG [1961]
-             alleged has something with a women, scared she got pregnant and arranged doctor to check if she was pregnant and he paid for abortion, shows that he has sexual relation with the women.
-             so his conduct of getting her examined and treatment corroborate the story = YES

12. Chan Kwok Kueng v The Queen [1990]
-             Accused tried to run away when being investigated, the court held it is very weak corroboration because people may try to run away for a lot of reasons.

13. Choo Chang Teik
-             here the one where house was attacked and ran away
-             they had valid explanation
-             So what is meant here is that your conduct, there could be an explanation.

C. DELIBERATE LIE

14. R v Lucas [1981]
-                here provided guideline that there has to be:
-                deliberate lie
-                relate to material issue
-                the motive of lie must be realization of guilt or fear of truth
-                Hence the statement must clearly show to a lie by independent evidence.

15. Syed Ali bin Syed Abdul Hamid
-                Here providing for that the Lucas guideline is applied in Malaysia as well.

CAN THERE BE CORROBORATION BY PREVIOUS STATEMENT
-          If it requires independent from the accused, then there cannot be corroboration by the accused person.
-          If you allow accused person to do so, can set up their own corroboration etc which is illogical.

I. COMMON LAW
-          Very clear on this point but unlike our evidence act.

16. R v Virgo [1978]
-          here cannot use his diary records as corroboration, it has to come from external source

17. R v Whitehead [1929]
-          Page 269 of MP.





II. EVIDENCE ACT
-          See section 157.

SECTION 157
-          seems to suggest witness can be corroborated by his own former statement and goes against everything stated in the common law
-          elements:
1. Witness should be given evidence with regards to some fact
2. He should have made a previous statement with regard to the same fact at or about the same time, or
3. Has made a statement about this to a legal authority

Hence in this country, there’s a big question of if we allow self-corroboration? As usual, we have two schools of thought; have strong attachment to common law which is very clear but equally our section if very clear. But held section 157 is consistency although use the term corroboration, it is meant by consistency (one school of thought). The other one says it is corroboration from the words but weak corroboration. But this section not removed so need to know both positions.

I. Consistency
II. Amounts to corroboration

18. PP v Paneerselvan
-          1st principle -court stated the term ‘any former statement’ of the section refers to any former statement doesn’t have to be something that has been communicated/conversation
-          So if you write in your diary, being a statement can be a corroboration.
-          So if going back to Virgo principle, it can fall under 157.
-          2nd principle statement made at or about time of incident so there must be proximity of the evidence (requirement is statement made as reasonably earliest possible stage) if there is a delay can’t bring in under 157.
-          3rd principle - the requirement that it must be made/about the time does not apply if the statement is made to a legal authority
-          So there are 2 types of statement (made about the time & made to legal authority) so for the one made to legal authority the proximity test don’t apply to this type of statement.
-          a police statement would fall under the second limb here

19. Mohamed Ali v PP [1962]
-          Here, the court came to the conclusion; a statement under 157 is not corroboration. Why? Because corroboration strictly speaking has to be independent and has to conform to Baskerville. So it only establishes consistency and not corroboration.

20. Ah Mee v PP
-          FC case here. As far as this case is concerned, it agrees with Mohamad Ali that section 157 statement is only to establish consistency and not corroboration. It helps but not enough.

21. Aziz bin Muhamed
-          this is the most important case to pay attention on
-          Here discussed by MP. And Augustin paul went through a great deal of trouble and looked at every sections in EA to use section 157 for consistency only to reconcile common law and the Act because at the moment it was conflicting. 
-          Here therefore, AP wanted to come up with a solution and the solution was found under section 73A(7)
-          If look at this section, it says you cannot corroborate yourself so there is a great deal of inconsistency.
-          first of all 73A only deals with documentation in civil cases and corroboration is an issue in criminal cases, so he wants to bring in section 73A into the entire Act so although deal with civil only, it deals with the entire Act cause that is what it says
-          “Apply to any out of court statement...”
-          read his book on this section LAAA (malas)

22. Lim Guan Eng v PP
-          Here is the sedition case
-          COA with Gopal Sri Ram there
-          stating that evidence needing corroboration cannot corroborate on itself and including section 157 and therefore said only consistency
-          FC here reversed on COA that section 157 is corroboration because of the word itself
-          they also made clear corroboration under section 157 is very very weak and some judges use the term of infinitesimal (so minute smaller than possible measurement that is the s.157 corroboration = worthless)

Cases where 157 amounts to corroboration

23. Koh Soon Poh
-     saying EA section 157 prevails and the common law not applied here

24. R v Velayuthan
-     saying 157 amounts to corroboration but the value is a question of fact

25. Karthiyayani (READ ON THIS)

26. Lim Guan Eng
-           current state of law ended here.

CATEOGORI ES OF SUSPECT WITNESS
A. Child witnesses
-           Evidence of a child witness must be treated with caution
-           Because children cannot distinguish between fantasy and reality



27. Chao Chong v PP [1960]

PROCEDURE
-           Section 118: intellectual capacity test

28. Sidek bin Ludan

After going through Sidek, then see whether giving sworn or unsworn evidence. But if court through preliminary questioning doesn’t understand nature of oath but know has duty to tell the truth then can take unsworn statement.

29. Yusainin Mat Adam
-          if procedure not followed when dealing with child witness then fatal
-          Capacity, can give evidence, sworn or unsworn?
-          If give sworn, corroboration and warning and can convict with it if satisfied BRD.

UNSWORN EVIDENCE OF A CHILD WITNESS S.133A - VERY IMPORTANT
-          if a child witness does not understand the nature of the oath and the higher duty to tell the truth when under oath he may be allowed to give unsworn evidence under section 133A provided that:
i. He has sufficient intelligence to justify its reception (intellectual capacity test)
Ii. He understands the duty to tell the truth

So what is the proviso?
-          unsworn evidence of a child if given on behalf of the prosecution, the accused not liable to be convicted unless corroborated
-          corroborating evidence is mandatory
-          corroboration required by law

*continuation of child witness
1.         Loo Chuan Huat v PP [1971]
2.         Tham Kai Yau v PP
3.         PP v Gurdial Singh
-           Here court referred to Tham Kai Yau
-           Court stated for sworn evidence of child need to be cautious and no need for any formal waning.
-           and the court also held you can act on the unsworn evidence given for corroboration as long as aware of risk and take prudent approach but even that is in the child of tender years. If the child is much older probably not so fatal.
4.         Lee Kwang Peng
-           Here FC decision, where same principle is reinforced.

VICTIMS OF SEXUAL OFFENCES
§     Corroboration required by practice & prudence
§     Highly unlikely to convict based on uncorroborated evidence of witness if satisfied BRD
§     Mandatory: only the corroboration warning

5.         Din v PP [1964]
-           Here explain why need corroboration in sexual offences and here was because of nature of the case itself.



ACCOMPLICE
§     Corroboration only of practice and must warn himself, warning mandatory
§     See Section 114(b) does not render that conviction illegal where you convict based on corroboration
16.       Lim Yam Hong
-           It can be convicted based on the corroboration of the accomplice
-           but what is mandatory is corroboration warning, if the judge did not give himself the warning and not revealed in the judgment, the conviction can be quashed because failure to give the warning is fatal.
*Accomplice is already where he is not a co-accused and not charged already, and co-accused he is testifying on his own behalf, an accomplice is a witness for the prosecution. So he is a suspect witness and clearly working with prosecution.
17.       Davies v DPP [1954]
-           provided on the definition of accomplice = witness called by the prosecution and a person who has participated in the crime/received stolen goods.
-           But the most important thing is they are not appearing on their own behalf
Here, cross refer to section 114(b) of EA 1950, the presumption here is that an accomplice unworthy of credit unless he is corroborated. Court will not be prepared to convict based on your testimony.
Is there a difference between accomplice or a police spy? This is someone who is working with the police as in informer and a policeman undercover and later after the investigation is over, this police agent comes to testify, he is not categorized as an accomplice. This would mean the rule of corroboration does not apply. So how to distinguish these 2? An accomplice will start working with prosecution after the crime is agreed for lesser charge/testify in exchange of not being charged at all, but that would be dubious. As for agent start before the charge.  

These are all on corroboration.

EVIDENCE OF CHILD WITNESS ACT
-                      Here on examination and cross examination
-                      Here you will be needing this when you’re dealing with child
-                      Child who is competent
-                      Child who is giving sworn/unsworn evidence
-                      Then deal with corroboration whether required by law/practice?
-                      What is the corroborating evidence (examples of corroboration evidence, DNA, crime distress, s.157 etc)
-                      Then encounter the manner in which a child witness can give evidence

Here this Act  does not deal with evidence of law per say because procedures still governed under CPC and the evidence under EA1950, but the manner the child gives evidence has improved. Take note child witness under this Act is 16 years old (Section 2) old but it does not include the accused or child charged under an offence.

SECTION 16
-                      Here stating that the CPC shall continue to apply except there is some provision that expressly contradicts CPC or EA.
-                      Here it deals with provisions relating to the giving of evidence by a child witness
-                      The law relating to child witness still governed by the provisions of CPC and EA and this is for the court to be more children friendly.




MANNER OF GIVING EVIDENCE
SECTION 3 – How a child witness may testify
SECTION 4 - screen
SECTION 5 – live link (the child will not be in the court room but in another room but there would be a live feed of child testimony into the court and they would be able to see each other but not allowed to see the accused)
SECTION 6 – Video recording
SECTION 8 – intermediary (the court can authorize someone else other than lawyers to examine the child because could be intimidating to talk to a stranger)
SECTION 10 – formal attired to be dispensed with

CPC has also been amended and now have some of these provisions for adult witnesses as well.

-          continuation of examination of witnesses -

EXAMINATION OF WITNESSES
SECTION 135
-                      order of production and examination of witnesses
-                      The GR is that in order which witnesses are produced and examined regulated by the law in practice and if absence of any such law up to court’s discretion (both criminal and civil cases)
-                      Criminal case: duty of the prosecution to produce it witnesses first
-                      If accused is called to enter his defense then he may call his witness
-                      Civil case: general is that plaintiff will open the case by calling his witness followed by the defendant.

SECTION 137
-          The order of examination starting with chief, then cross and finally re-examination.
SECTION 138
-          Further elaborating on what is stated in section 137.
-          Here cross examination and examination in chief must be related to facts which are relevant but cross examination need not be confined to things raised in examination in chief but to the matter
-          In reexamining cannot introduce new things unless exception getting permissions of court, but if that is given every opportunity to be given to cross on that matter.

Examination- In Chief
-                      Cross refer to section 141 & section 142
-                      Purpose is to elicit for witness all material evidence to support and prove your case
-                      Confined to al material facts

SECTION 141
-                      Any suggestion the answer which the person putting it wishes or expects to receive suggesting disputed fact as to which the witness is to testify is called a leading question.



SECTION 142
-          Tells you when a leading question may not be asked “if objected” by the other party/adverse party except with permission of court.
-          Take note of subsection (2) court can give you such permissions if matters are introductory or undisputed, or which have in its opinion been already sufficiently proved.

EXCEPTION:
SECTION 154
-                      Another scenario when you can put questions to your witness and use leading question is when your witness has turn hostile
-                      So in situation where your own witness has turned hostile, then ask permission of court to treat him under section 145 that he is a hostile witness now and it is up to court to determine if he is hostile
-                      He is only hostile witness if he appears not going to tell the truth.

Cross examination
-          Very important
-          An the purpose is to elicit witness to answer in favor of the opposing party and to weaken the evidentiary value of matters testified during examination in chief
-          Failure to cross examine witness can be fatal and can amount to acceptance of the testimony




1.                  PP v Wong Yee Sen [1990] 1 MLJ 187
-                      Cross examination is beyond doubt the greatest engine ever invented for the discovery of the truth:
-                      Ask leading questions (s.143)
-                      To impeach for previous inconsistent statement (section 145)
-                      To test the accuracy, veracity an credibility (s.146)
-                      To shake the credit of the witness by injuring his character

2.                  Hanafi Mat Hassan
-          One of the issue of appeal is that the expert reason did not give reasons or explain reasons adequately but on appeal appellate court came to conclusion what happened to trial court he has adequately explain
-          If you are not happy should have cross examined and that was not done, so that is why the appeal was struck out among others. 

3.                  PP v Mastor Ibrahim (2012)
-                      Duty of adverse party to put the case
-                      You still to start to establish your defense, putting your case to your witness (so you need to start poking holes into prosecution case from the moment the case starts because usually once you hit prima facie and called to enter defence, and very few people found not guilty when ask to enter defence, so get rid of the case before it gets to the next stage)
-                       You have duty to put your case at the earliest opportunity when you cross your witnesses otherwise defence would look like a sham defence.

SECTION 143
-                      Leading questions allowed during cross examination but subject to qualifications
-                      Cannot put words to witness mouth
-                      Just take note of this section

Re-examination
-                      Purpose is to undo any damage done during cross examination, so basically purpose done here is damage control and this would be the last thing witness says before he steps out
-                      No new matters are allowed but only from cross examination of the adverse party

SECTION 159
-                      Refreshing of memory
-                      It would be better if witness can answer from memory and therefore can refresh memory and this section is the one that permits
-                      A witness may while under his examination refers to any writing made by himself, any writing read by a person.
-                      (read on this section)

SECTION 160
-                      Testify and adds on to section 151
SECTION 161
-                      Pay particular attention here where party has right to refer to documents even of adverse party to refresh memory

4.                  Moomin case

CONDITIONS FOR REFRESHING OF MEMORY
1.                  The writing must have been made by the witness himself
2.                  If made by another, it must have been read by the witness & known to be correct and
3.                  The writing made or read at the time of the transaction or soon afterwards that it was likely that it was still fresh in his memory.

PP v Paneerselvan
-                      Application must be put to the court to refer to the statement first
-                      It must be demonstrated that there is a need to refresh
-                      Whether to allow or not is at the discretion of the court

Refer to section 119: can you make reference here to refresh memory if you are the police officer? Yes and section 161 where adverse party refers to it for refresh memory, the other party can refer to the one looked at only.
SECTION 155
-                      Impeachment being dealt here, of credit of witness and one method is to impeach is to refer to any statement made by witness not consistent
-                      So particular attention to paragraph (c) looking at previous inconsistent statements
-                      In relation to impeachment here and para (c) it MUST be read together with section 145 and the method identified in section 145.
-                      (1) deals with statements in writing/reduced into writing
-                      (2) impeachment by looking at oral statement
-                      Both can be used (take note and very important)

5.                  Abdul Khooder bin Shafie [1989]
-                      Witness can only be contradicted by his own statement and not by the statement of another

6.               PP v Scott Allen
-                   There must be serious or material contradiction

7.               Muthusamy v PP [1948]
-                   Impeachment proceedings is by leave of court
-                   Court will only grant leave if serious or material contradiction

Method to impeachment:
ü    Lay the groundwork
ü    Inform the court of discrepancy
ü    Let court have sight of statement
ü    Court to decide on discrepancy
ü    Witness must be given a chance to explain (if cannot explain that is when document will be brought in for purpose of impeachment
ü    Did the witness make the statement
ü    If not we have to prove the statement call the person who recorded the statement or made to
ü    Finally court will decide at the end of prosecution case or defense case whether impeachment was successful
Effect of Impeachment:
-          The whole evidence will be discarded

8.                  DSAI (2004) 3 CLJ 737







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