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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.
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Corroborative required by law: there must be
corroboration evidence before there can be conviction
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the court cannot convict without corroborating
evidence
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If it does the conviction will be quashed
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Corroborating evidence is mandatory
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Corroborating evidence is mandatory
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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.
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what is required is for the court to be on guard
to the risks involved in convicting without corroborating evidence
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The court must war itself of the risks involved
and the need for caution (mandatory)
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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.
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Mandatory for sexual offences.
1.
R v Baskerville
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provides for what it meant by corrborating
evidence
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must be independent
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must implicate the accused
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must show that crime was committed
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must show that the crime was committed by the
accused
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the definition of corroboration has been taken
into Malaysia law.
2.
Dowse v AG [1961]
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we will apply Baskerville
3.
Thavanathan Balansubramaniam
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another Malaysian case giving definition of what
is corroborative evidence
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Changes a little bit of Baskerville principle
but the same elements to be proven.
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corroborating evidence must confirm the evidence
requiring corroboration
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can be direct or circumstantial evidence but
admissible in its form
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must be independent
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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
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Distress/crying of victim especially in sexual
offences where victim was seen to be crying or very distress it can amount to
corroboration
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But we must be cautious, the court will exercise
caution, because sometimes you can fake the cry and can cry on demand.
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Crying and distress can be stimulated.
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the court will decide what can be accepted and
not
4. R v Redpath [1962]
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the principle where crying and distress can be
accepted as corroboration but court will exercise caution
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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
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when he saw her crying, she didn’t know he was
observing her so it is understood that this is real crying
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Hence totally independent and an observation of
high quality corroboration.
5. R v Wilson [1973]
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here crying alone in the bedroom, mum saw her
crying and asked why, she refused to tell mother
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the mother here called as witness and use as
corroboration
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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.
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Hence not rejected.
6. R v Chauhan [1981]
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victim had been alone in office with accused and
a short while later the victim seen running out of the office crying
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another collegaue in the same building saw and
followed victim and asked her what happened
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she was so distress crying and said the accused
had attacked her
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Question to court can this amount to
corroboration? Yes, therefore can be brought it.
7. Tan Kin Seng [1997]
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This is the case to show those principles
brought in to Malaysian law
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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
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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
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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
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Need to look at other types of injuries as well
suffered by victim.
8. James v R [1970]
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court made clear that victim has intercourse
near to time of consent but not by itselfbe conclusive
9. Syed Abu Tahir v PP [1988]
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when it comes to statutory rape, consent
irrelevant as long as you can corroborate intercourse
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You can also identify the identity of attacker
so now easier in that sense.
10. Aziz bin Muhamad Din v PP [1996]
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not necessary to be explained here (was done in
paper 1)
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here there is a problem because of the medical
evidence coming in
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There are 2 doctors examining victim and going
to put a date into her...
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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)
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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
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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
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example trying to leave country after finding
out police investigating this issue then can use as corroborating
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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]
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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.
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so his conduct of getting her examined and
treatment corroborate the story = YES
12. Chan Kwok Kueng v The Queen [1990]
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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
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here the one where house was attacked and ran
away
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they had valid explanation
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So what is meant here is that your conduct,
there could be an explanation.
C. DELIBERATE LIE
14. R v Lucas [1981]
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here provided guideline that there has to be:
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deliberate lie
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relate to material issue
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the motive of lie must be realization of guilt
or fear of truth
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Hence the statement must clearly show to a lie
by independent evidence.
15. Syed Ali bin Syed Abdul Hamid
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Here providing for that the Lucas guideline is
applied in Malaysia as well.
CAN THERE BE CORROBORATION BY PREVIOUS STATEMENT
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If it requires independent from the accused,
then there cannot be corroboration by the accused person.
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If you allow accused person to do so, can set up
their own corroboration etc which is illogical.
I. COMMON LAW
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Very clear on this point but unlike our evidence
act.
16. R v Virgo [1978]
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here cannot use his diary records as
corroboration, it has to come from external source
17. R v Whitehead [1929]
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Page 269 of MP.
II. EVIDENCE ACT
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See section 157.
SECTION 157
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seems to suggest witness can be corroborated by
his own former statement and goes against everything stated in the common law
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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
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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
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So if you write in your diary, being a statement
can be a corroboration.
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So if going back to Virgo principle, it can fall
under 157.
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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.
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3rd principle - the requirement that
it must be made/about the time does not apply if the statement is made to a
legal authority
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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.
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a police statement would fall under the second
limb here
19. Mohamed Ali v PP [1962]
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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
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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
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this is the most important case to pay attention
on
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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.
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Here therefore, AP wanted to come up with a
solution and the solution was found under section 73A(7)
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If look at this section, it says you cannot
corroborate yourself so there is a great deal of inconsistency.
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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
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“Apply to any out of court statement...”
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read his book on this section LAAA (malas)
22. Lim Guan Eng v PP
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Here is the sedition case
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COA with Gopal Sri Ram there
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stating that evidence needing corroboration
cannot corroborate on itself and including section 157 and therefore said only
consistency
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FC here reversed on COA that section 157 is
corroboration because of the word itself
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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
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if procedure not followed when dealing with
child witness then fatal
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Capacity, can give evidence, sworn or unsworn?
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If give sworn, corroboration and warning and can
convict with it if satisfied BRD.
UNSWORN EVIDENCE OF A CHILD WITNESS S.133A - VERY
IMPORTANT
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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?
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unsworn evidence of a child if given on behalf
of the prosecution, the accused not liable to be convicted unless corroborated
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corroborating evidence is mandatory
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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
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Here court referred to Tham Kai
Yau
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Court stated for sworn evidence
of child need to be cautious and no need for any formal waning.
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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]
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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
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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
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Here on examination and cross examination
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Here you will be needing this when you’re
dealing with child
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Child who is competent
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Child who is giving sworn/unsworn evidence
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Then deal with corroboration whether required by
law/practice?
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What is the corroborating evidence (examples of
corroboration evidence, DNA, crime distress, s.157 etc)
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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
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Here stating that the CPC shall continue to
apply except there is some provision that expressly contradicts CPC or EA.
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Here it deals with provisions relating to the
giving of evidence by a child witness
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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.
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continuation
of examination of witnesses -
EXAMINATION OF WITNESSES
SECTION 135
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order of production and examination of witnesses
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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)
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Criminal
case: duty of the prosecution to produce it witnesses first
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If accused is called to enter his defense then
he may call his witness
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Civil
case: general is that plaintiff will open the case by calling his witness
followed by the defendant.
SECTION 137
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The order of examination starting with chief,
then cross and finally re-examination.
SECTION 138
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Further elaborating on what is stated in section
137.
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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
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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
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Cross refer to section 141 & section 142
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Purpose is to elicit for witness all material
evidence to support and prove your case
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Confined to al material facts
SECTION 141
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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
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Tells you when a leading question may not be
asked “if objected” by the other party/adverse party except with permission of
court.
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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
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Another scenario when you can put questions to
your witness and use leading question is when your witness has turn hostile
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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
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He is only hostile witness if he appears not
going to tell the truth.
Cross examination
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Very important
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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
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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
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Cross examination is beyond doubt the greatest
engine ever invented for the discovery of the truth:
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Ask leading questions (s.143)
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To impeach for previous inconsistent statement
(section 145)
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To test the accuracy, veracity an credibility
(s.146)
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To shake the credit of the witness by injuring
his character
2.
Hanafi
Mat Hassan
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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
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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)
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Duty of adverse party to put the case
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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)
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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
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Leading questions allowed during cross
examination but subject to qualifications
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Cannot put words to witness mouth
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Just take note of this section
Re-examination
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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
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No new matters are allowed but only from cross
examination of the adverse party
SECTION 159
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Refreshing of memory
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It would be better if witness can answer from
memory and therefore can refresh memory and this section is the one that
permits
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A witness may while under his examination refers
to any writing made by himself, any writing read by a person.
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(read on this section)
SECTION 160
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Testify and adds on to section 151
SECTION 161
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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
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Application must be put to the court to refer to
the statement first
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It must be demonstrated that there is a need to
refresh
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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
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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
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So particular attention to paragraph (c) looking
at previous inconsistent statements
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In relation to impeachment here and para (c) it MUST
be read together with section 145 and the method identified in section 145.
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(1) deals with statements in writing/reduced
into writing
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(2) impeachment by looking at oral statement
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Both can be used (take note and very important)
5.
Abdul
Khooder bin Shafie [1989]
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Witness can only be contradicted by his own
statement and not by the statement of another
6.
PP v
Scott Allen
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There must be serious or material contradiction
7.
Muthusamy
v PP [1948]
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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