Summary Note on Law of Evidence : Corroboration (Child / Sexual Victim / Accomplice / Identification)

Assalam & salam sejahtera

This is the notes on : Evidence Law - Corroboration for Child / Sexual victim / Accomplice / Identification

................................................Here it goes...............................................

CORROBORATION

è General Concept

§ CORROBORATION = Any facts or evidence that is used to support / confirm the other facts.

§ AIM = To verified the evi given by the witness so that it is sufficient and credible.

§ There are 4 points to be focus:

1. Rule of prudence

2. Rule of law

3. Rationale for corroboration

4. Corroboration for Child / Sexual victim / Accomplice / Identification

Held: Corro evi. is evi that can support / show that the evidence given by the witness is true.

è Sources of Corroboration

§ Statute = Eg: S 133A – Unsworn child witness statement must be corroborated.

§ Rule of prudence = Notss codified but has been a well-known practice in court system.

§ Rule of law = Codified in statute (Eg: S133A), and has to be adhered.

è S118 of EA

§ Anyone can be a witness except for child at tenders years, extreme old age, and disease.

§ However, if they can satisfied the conditions served, their evi still acceptable.

è S134 of EA

§ No requirement for the no. of the witness to be more than one.

§ However, it must be noted that the no. of witnesses did influence the weightage of the evi.

è Corroboration for Child of Tender Years

§ Rationale of corro for child of tender years:

Held: Corro evi. is needed in child witness case as child is regarded as cannot differentiate between reality & fantasy.

§ ‘Tender years’ = No defined, but it can be regarded as the child who can understand the nature & consequence of the oath.

§ S133A – Under this section, there are certain points to be noted:

POINT ONE:

· Child witness who gives sworn evi is those who understand the nature of the oath.

üHere, CORRO for the evi given by such child witness is only a matter of rule of prudence not rule of law.

üIf Court choose not to corro the evi, court MUST give itself a WARNING in convicting the accused based on such uncorro evi.

üCORRO WARNING: No exact / conclusive formula. So long as the court stated out in the judgment that they aware that the evi is uncorro, its regarded as a warning.

FOC: The deceased’s son who gives sworn evidence is not corroborated in this case and there is no corro warning being done by court.

Held: The evidence is to be accepted despite there is no corro warning given in this case. This is because, the fact that the son is 13 years old at the time in which the incident occurred and 14 years old at the time of when the trial is conducted, he is able to prove to the court that the older age of him come with maturity in understanding the nature and consequence of oath and also the duty as a witness to speak the truth.

POINT TWO:

· Child witness who gives unsworn evi is those who can’t understand the nature of the oath but has sufficient intelligent level;

üSufficient intelligent = To justify for the evi given to the court + To understand the duty of speaking the truth.

§ Proviso of S133A – In order to convict the accused using the unsworn evi, given by the child witness, it must be corroborated.

FOC: The app has been convicted for an offence of rape. There were three girls testified in this case including the victim herself who aged 9y 14m on the date of the offence and aged 10y 6m and 14 days on the day of the trial.

Held: The unsworn evi given by child witness has to be corro in order to be used for conviction of the accused. In this case, it is a mandatory step.

MUTUAL CORROBORATION

Held: An unsworn child witness cannot corroborate another unsworn child witness.

FOC: In this case, the 3 female students has been said to be molested by their school teacher (S354 of PC outrage of modesty). Two of them aged 12 yo, & another one is 10 yo.

Held: No person can be convicted using the unsworn evi given by the child witness unless it is corro by a material evi. Two unsworn child witnesses cannot corro each other.

NOTE:

HOW TO DETERMINE WHETHER A CHILD WITNESS CAN UNDERSTAND THE OATH / HAS SUFFICIENT INTELLIGENT LEVEL OR NOT?

THROUGH ‘PRELIMINARY INQUIRY / EXAMINATION’ (PI)

§ PI is not a requirement under the Evi Act.

§ Aim for PI is to enable the court to determine whether a child is competent enough as a witness (Voire dire).

§ However, in order to determine whether a child witness can understand the oath / has sufficient intelligent level, this PI must be conducted.

Additional FOC: The defence counsel has argued that such evidence of the girls shall not be accepted as their sworn evidence was not at the first place undergo any preliminary examination.

The court firmly held that there was such examination conducted by the trial judge and as for that, the children’s oath was taken to be valid. The fact that one of the children, the victim is looking uncomfortable while testified before the court was held by court not a factor to reject her evidence as it is normal for a victim with an additional factor of tender years to act in such way while testifying about her rape incident.

Held: PI has to be conducted in order to see whether a child witness has the trustworthiness or not, and to see if (s)he can understand the need of speaking the truth.

Held: No conviction is allowed unless court has make sure that a child understand the duty of speaking the truth and the nature of the oath (for sworn child witness).

Held: S133A can be divided into 2 (refer Point 1 & 2). If the child didn’t know / understand the duty of speaking the truth, such child cannot be called as a witness at all.

INDEPENDENT CORROBORATION

§ Eg: Medical report / independent witness / circumstantial evi / doct evi.

Held: Corroboration must be an 1) independent evidence, 2) which affects the accused by connecting / tending to connect him with the crime, and 3) such evi must be evi which implicates the accused with the crime committed.

è S157 of EA

§ Former statement may be used as to corro the evidence given by the witness him/herself.

§ Former statement is a statement or story told by the witness to somebody else, and later such story is going to be used to corro her evi in court.

è S8 Illustration J of EA

§ Former s/m under S157 is a type of corro evi, but weightage of such evi is quite lower compare to independent evi.

FOC: The accused was charged with an offence of rape. The accused in his house, when later all of his friends went out leaving the victim and him in house alone.

Held: For sexual victim, there is a requirement to adduce corroboration for the allegation made. In this case, there is a medical report adduced to support. However, the case of Lim Guan Eng has overruled part of the judgment in this case on matter relating to self-corro – S157.

FOC: 3 female students has been molested by their school teacher. The two have later informed the event to their mom and another one to her teacher. Later in trial, such child witnesses wanted to use the former statement given to their mom and teacher to corro their evi.

Held: S157 of EA is applicable to the statement made ‘at or about the time when the fact took place’ (ATF). Referring to the case of PP v Teo Eng Chan, ATF is not about hours / days. ATF is = ‘First Reasonable Opportunity’ / ‘As speedily as could reasonably be expected’. In this case, it was held that:

i. Former s/m to the mom were rejected as there is a clear delay (2-3 months) in informing such facts to their mom when the child witnesses has the reasonable opp to do so.

ii. Former s/m to the teacher is acceptable as it was made as speedily as one could reasonably expected.

FOC: In this case, the child witness has been raped by the several man. It takes quite a long time before the child let her family know about this.

Held: Court still accept such former s/m despite it was given quite late taking into account the fact that the child doesn’t has a good r/ship with her family which make her un-able to have that 1^st reasonable opp.

Held: The story told by the victim to her mom cannot be used as corro evi as it is a self-corro evi.

NOTE: The case of The King is not followed as M’sia has it own stand on the self-corro evi.

è CONCLUSION

§ Self-corro ie the former statement made by the witness her/himself still admissible but the weight for such evi is qs-able.

è Corroboration for Sexual victim

§ Corro for sexual victim is only a rule of prudence not the rule of law.

§ However, the need to corro evi of the sexual victim has been very much emphasized in every tried case.

§ Rationale of corro for sexual victim:

FOC: A woman who aged 29 yo was a maid and usually will off to sleep ay 10.30pm. later, she alleged there were 2 man came and 1 of that man put up a knife at her neck. This has been informed by her in her report. She didn’t mentioned at all about rape. Police has sent her off to the hospital to check up, and later police found her pant and stains on the cover of the bed. Dr also reported that there was no sexual intercourse remark in her private part at least for the past 12 hours. She later complaint that she has been raped.

Held: Corro evi. is needed for sexual victim for the reason of the nature of the offence itself. This is based on the maxim of “it is easy to alleged but difficult to prove”. For sexual corro, medical report is one of the most important corro evi that must be served. Without it, the case established would be a bit diff.

FOC: The victim in this case aged 17 yo. She alleged that the trainer has asked her to go the his Kancil car, where the sexual intercourse has occurred. She later refused to report to the police, and has behave in a very normal way. Only after 44 days, she lodged a report.

Issue: Is the sexual intercourse is consented or rape?

Held: Court has regarded such sexual intercourse as a consented one as there is no corro evi to support her allegation.

FOC: DSAI in this case has been charge for an offence stated in S377A of PC, ie committing the carnal intercourse vs the order of nature. The victim in this case, Azizan has not been corro for whatever evi that he has given to the court.

Issue: Can the uncorro evi given by the witness in sexual case be used in convicting the accused?

Held: Gen rule is that the evi given by sexual victim must be corro except for certain evi which has special weight in it. In the case where the evi is uncorro, it is sufficient for court to convict the accused using such evi if the court has given itself a warning for it.

Held: The court in this statutory rape case has held that it is not the rule of law that the evi given by the sexual victim to be corro. Besides, at the same time it is also permissible for the court to convict using such uncorro evi, so long as it has given itself a warning to use such evi.,

Held: Despite no corro for sexual victim’s evi, such uncorro evi still can be used to convict the accused so long as the evi adduced is an unusual convincing evi.

Held: The weight of evi (ie the unusual convincing evi) is important as it will certain up the ring of truth which will leave no doubt in convicting the accused.

Held: ‘Unusual convincing evi’ = the victim during the examination within the trial, must not at all shaken up to say the truth and must always be convincing enough.

è Corroboration for Accomplice

§ Rationale of corro for accomplice:

Held: An accomplice is a person who not deserves a belief. He also has an obvious interest in favouring the authorities in whose hands his own fate lies.

FOC: All of the 3 accused (armies) planned to rob a taxi near Chinese cemeteries. Sarjeet sat at the back seat. 1 of the accused, who sat right next to the taxi’s driver, has pleaded guilty and now become the PP’s witness to testify about the other 2 accused. He has said that Sarjeet held the knife, rob RM80 & a branded watch from the taxi driver. However, the taxi driver has stated that the one who pleaded guilty is the one who held the knife against him. Later, the accused who testified confessed that he was lying.

Held: Court may presumed the accomplice to be ‘unworthy of credit’ unless he is corro with some material evi. corro for an accomplice is onl important for a significant point of evi the accomplice brought in not for every word that they utter. In this case, the accused who testify was rejected to be the credible witness.

Held: The need to corro for an accomplice is depending on the nature of the witness who is somebody who may have an interest to show other’s guilt and hid his own.

è Who is an’Accomplice’?

Held: ‘Particeps criminis’ = Someone who takes part within the crime or receiving stolen prop or the one who takes active part in the crime.

FOC: Here, the person who witnessed the last moment of the attack & helped to dispose the body was said to be an accessory for such offence.

Held: Court still held him as the accomplice. Referring to the case of Davies, so long as he is participating within the crime, he can be regarded as an accomplice. Regarding the level of participation, it is irrelevant whether he is an ‘accessory’ (after the facts / crime) or a principal (before / during the crime).

è S133 of EA

§ An accomplice is a competent witness and a conviction is permissible to be done despite the fact that such evi given by the accomplice is uncorro.

è S114 Illustration B of EA

§ An accomplice is unworthy of credit unless its evi is corro in material particulars.

è HOW TO READ S133 & S114 ILLUSTRATION B OF EA TOGETHER?

§ The court here must decide whether to insist or to set aside the need of the corro for evi given by the accomplice.

Held: One of the factor in determining whether there is any need of corro for the accomplice is the degree of the complicity of the accomplice. In some cases, the accomplice may not willing to be the participant of the offence but has acted under pressure for such an offence (which refer to this case as to the victim of such carnal intercourse).

Held: In this case the court drew a distinction between an accomplice who play active and passive role. For accomplice who play active role, his evidence should be corro, and for the passive one, an usual corro warning is sufficient.

Held: Before deciding on corro for an accomplice, court must see first whether he is a competent / reliable witness or not. Only after such consideration, court has to see for any need of corro warning. Corro in only the rule of prudence, not rule of law. Corro warning on the other hand need to be administered by court itself though the format is not fixed.

Held: In the case where court only warns itself of such un-corro evi, it must state clearly that the case has been proved beyond reasonable doubt in order to make the conviction valid. Mere warning is insufficient.

MUTUAL CORROBORATION

Held: An accomplice is not allowed to corro another accomplice.

NOTE: However, take note S114 Illustration (b).

è S114 Illustration (b) of EA

§ In a situation where the crime is committed, and A, B & C have been caught on the spot and kept apart separately, and all of them testify later that D is the one who commit the crime, such corro between accomplice is permissible.

Held: Principles laid down –

1) To corro an accomplice is a mere rule of prudence and not the rule of law.

2) Warning of uncorro evi must be given when the evi is given by uncorro accomplice.

3) An accomplice cannot corro another accomplice.

4) If the warning is not done, the appellate court may quash the conviction.

Held: In this case, the court held that in the bribe case, the receiver of the bribe only can be regarded as an accomplice if (s)he has mens rea to be part of such crime. In this case, the act of the police to report about the bribe that is given to him has proved that he is not an accomplice for a bribe.

è ‘Agent provocateurs’ (AP) vs ‘Accomplice’?

§ S40A of Dangerous Drug Act 1952: There is no rule of law that can regards the evi given by the AP as unworthy of credit as the AP only abet in such crime as to secure evi vs such accused.

§ S52(2) of Malaysian Anti-Corruption Commission Act 2009: There is no rule of law that can set aside a conviction just because the court disregard itself from being warn of receiving uncorro from an AP.

Held: An AP cannot be regarded as an accomplice. In this case, the police spy is described as an AP and not an accomplice. Court also stated that, these two classes of person can be diff via their intention. An accomplice tends to have ulterior motive while being a witness for the authority that is to save them from being convicted with such crime. While AP acted based on their own bona fide interest and also the rest of the society. This is highly associated with the spies and etc.

Held: 2 principles laid down:

1) Accused can be convicted based on uncorro evi of the AP.

2) AP evi did not need any corro as it is not the evi given by the accomplice.

è Corroboration for Identification

§ Corro if ID only significant / matter if the case is WHOLLY / SUBSTANTIALLY DEPENDING UPON THE ID.

§ Rationale of corro for ID is to avoid any mistake in accepting such evi in the form of ID.

FOC: There are three cases within this case –

1) Turnbull: It is about the conspiracy to commit burglary. ID was done by a police who has known him prior to the incident. But the ID in this case was done in a glimpse at night.

2) Robert: It is about the accused who has wounded other. ID was done by 2 witnesses in a dark ballroom hall only after 4 ½ months.

3) Whitby: It is about the hurly burly robbery. ID was done in a glimpse and was done when the accused still in the helmet.

Held: There were 3 steps for a qualification in ID.

1) Step 1: Caution about the ID (warning) – Is the case is wholly dependent on the ID, and if yes, court must give special warning / caution about the usage of ID in convicting the accused as the mistake of ID might occur.

2) Step 2: Close examination which cover matters such as

i. Observation of the identifier

ii. The distance of the identifier while observing

iii. The source of light while observing

iv. Any obstruction on the view (halangan) while making the observation.

3) Step 3: See for any specific weaknesses of the ID given (this is the case for poor ID). Here, such weak / poor ID must be corro with other type of evi.

Decision for current Case:

© Turnbull: The ID is not good, but as it is corro by another witness who saw the accused ran to the van (witnessing 1 transaction of event – menyaksikan kejadian secara rantaian), such ID is accepted.

è CONCEPT

§ If the ID is qualified as a good one, it does not need to be corro.

§ If the ID is a very poor one, it need to be corro.

§ Corro help to reduce the risk of mistake in ID.

FOC: Parents in this case is looking for their son in the night market. They tried to ask about him to 1 of the 7 members of a gang. That gang later had hit the dad with the helmet. The wife has ran away and met up a security guard and asked for a help. She later testified that a guard that helped her is an old man, which later revealed in court to be a 23 yo man. The wife also not sure about the total no. of the accused. She also said that she never knew the accused before this. She only certain about fact that all of the accused are man.

Held: ID rejected as there are too many vagueness in such ID.

FOC: In 2003, the victim (the stepdad), has been struck with a machete (parang). The accused later ran away and later were found in some other place with her shirt cover on blood.

Held: The steps in Turnbull case has been followed. And it is apparent in this case that the accused was the one who did it as there was an apparent blood stains on her shirt.

FOC: The accused in this case has been charged under S307 of PC for attempt of murder of Noor Junizah. The scene begins during night, when the accused asked the victim who aged 11 yo to ride with him on motorcycle to go to a plantation to look for his 20 cent. At that time the accused was wearing a black jacket and a helmet. Later, with full darkness of the night, at 10 feet from the victim, the accused take off his helmet. At 3 feet, the accused show to the victim a photograph of a woman in bikini. Here, she said she could see clearly the face of the accused and his hair is short. Later, the accused strangle the victim. After being hospitalized for 25 days, she has identified the accused in the ID parade.

Held: Court has applied all 3 steps stated in the Turnbull’s case. As the court believe that her ID was poor as during that scene, it was a full dark night, here allegation vs the accused must be corro with some other evi.

FOC: The victim in this case has went to a night market together with her friends, and decided to go back by herself. Later, she was pushed in the bushes by the accused. She said, with the 2-3 struck of lightning, she said she could see the accused face clearly. She screamed, and later informer her brother in law about it. At the same time, a witness named Rohani also saw a shadow of man ran away from the scene in rush after hearing the woman’s scream. Kamal, another witness see a man ran away from the scene. The brother in law also testified for the former statement that the victim give to him.

Held: ID was accepted.

FOC: There were 4 man went back and they were riding a motorcycle. Later, these mans were attacked by the accused. Accused raised the defence of alibi, however it failed to be procedurally proven. In this case, one of the man testified that the accused was wearing some mask, and another said he does not wear any mask.

Held: Court in deciding the ID, has followed the steps stated in the Turnbull’s case. The conviction has been set aside for such discrepancy relating to the mask.

NOTE: On the issue of when the court has cautioned itself for such an ID, but still has some discrepancies, it is now up to the court’s discretionary power whether or not to accept such ID.

FOC: In this case, the victim and her brother has went to shop for some goods, later bump into the accused. The accused asked her to have some drink. Later, the victim was slashed (tetak) and she managed to turn around and asked the accused “why he did so”.

Held: The ID done by the victim was accepted. As the fact that she asked “why he did so”, signified that she knew the accused prior to this event. Besides, the fact that the victim said the accused has bad fight with her. There is ID and recognition in this case.

FOC: The accused has been alleged to rob the oil station. There are 2 accused in this incident where one of them wear helmet, and another one wear a cap. The victim identified the accused to only the one who wear the cap as he has attacked the victim.

Held: Court still accept the poor ID to charge the accused together despite the fact that the ID is only for one accused. CCTV is used as the corro in this case. Court used S34 of PC to convict both of the accused based on ‘common intention’ to cause the offence.

Assalam & salam sejahtera

This is the notes on : Evidence Law - Corroboration for Child / Sexual victim / Accomplice / Identification

................................................Here it goes...............................................

CORROBORATION

è General Concept

§ CORROBORATION = Any facts or evidence that is used to support / confirm the other facts.

§ AIM = To verified the evi given by the witness so that it is sufficient and credible.

§ There are 4 points to be focus:

1. Rule of prudence

2. Rule of law

3. Rationale for corroboration

4. Corroboration for Child / Sexual victim / Accomplice / Identification

Held: Corro evi. is evi that can support / show that the evidence given by the witness is true.

è Sources of Corroboration

§ Statute = Eg: S 133A – Unsworn child witness statement must be corroborated.

§ Rule of prudence = Notss codified but has been a well-known practice in court system.

§ Rule of law = Codified in statute (Eg: S133A), and has to be adhered.

è S118 of EA

§ Anyone can be a witness except for child at tenders years, extreme old age, and disease.

§ However, if they can satisfied the conditions served, their evi still acceptable.

è S134 of EA

§ No requirement for the no. of the witness to be more than one.

§ However, it must be noted that the no. of witnesses did influence the weightage of the evi.

è Corroboration for Child of Tender Years

§ Rationale of corro for child of tender years:

Held: Corro evi. is needed in child witness case as child is regarded as cannot differentiate between reality & fantasy.

§ ‘Tender years’ = No defined, but it can be regarded as the child who can understand the nature & consequence of the oath.

§ S133A – Under this section, there are certain points to be noted:

POINT ONE:

· Child witness who gives sworn evi is those who understand the nature of the oath.

üHere, CORRO for the evi given by such child witness is only a matter of rule of prudence not rule of law.

üIf Court choose not to corro the evi, court MUST give itself a WARNING in convicting the accused based on such uncorro evi.

üCORRO WARNING: No exact / conclusive formula. So long as the court stated out in the judgment that they aware that the evi is uncorro, its regarded as a warning.

FOC: The deceased’s son who gives sworn evidence is not corroborated in this case and there is no corro warning being done by court.

POINT TWO:

· Child witness who gives unsworn evi is those who can’t understand the nature of the oath but has sufficient intelligent level;

üSufficient intelligent = To justify for the evi given to the court + To understand the duty of speaking the truth.

§ Proviso of S133A – In order to convict the accused using the unsworn evi, given by the child witness, it must be corroborated.

Held: The unsworn evi given by child witness has to be corro in order to be used for conviction of the accused. In this case, it is a mandatory step.

MUTUAL CORROBORATION

Held: An unsworn child witness cannot corroborate another unsworn child witness.

FOC: In this case, the 3 female students has been said to be molested by their school teacher (S354 of PC outrage of modesty). Two of them aged 12 yo, & another one is 10 yo.

Held: No person can be convicted using the unsworn evi given by the child witness unless it is corro by a material evi. Two unsworn child witnesses cannot corro each other.

NOTE:

HOW TO DETERMINE WHETHER A CHILD WITNESS CAN UNDERSTAND THE OATH / HAS SUFFICIENT INTELLIGENT LEVEL OR NOT?

THROUGH ‘PRELIMINARY INQUIRY / EXAMINATION’ (PI)

§ PI is not a requirement under the Evi Act.

§ Aim for PI is to enable the court to determine whether a child is competent enough as a witness (Voire dire).

§ However, in order to determine whether a child witness can understand the oath / has sufficient intelligent level, this PI must be conducted.

Additional FOC: The defence counsel has argued that such evidence of the girls shall not be accepted as their sworn evidence was not at the first place undergo any preliminary examination.

Held: PI has to be conducted in order to see whether a child witness has the trustworthiness or not, and to see if (s)he can understand the need of speaking the truth.

Held: No conviction is allowed unless court has make sure that a child understand the duty of speaking the truth and the nature of the oath (for sworn child witness).

Held: S133A can be divided into 2 (refer Point 1 & 2). If the child didn’t know / understand the duty of speaking the truth, such child cannot be called as a witness at all.

INDEPENDENT CORROBORATION

§ Eg: Medical report / independent witness / circumstantial evi / doct evi.

è S157 of EA

§ Former statement may be used as to corro the evidence given by the witness him/herself.

§ Former statement is a statement or story told by the witness to somebody else, and later such story is going to be used to corro her evi in court.

è S8 Illustration J of EA

§ Former s/m under S157 is a type of corro evi, but weightage of such evi is quite lower compare to independent evi.

FOC: The accused was charged with an offence of rape. The accused in his house, when later all of his friends went out leaving the victim and him in house alone.

i. Former s/m to the mom were rejected as there is a clear delay (2-3 months) in informing such facts to their mom when the child witnesses has the reasonable opp to do so.

ii. Former s/m to the teacher is acceptable as it was made as speedily as one could reasonably expected.

FOC: In this case, the child witness has been raped by the several man. It takes quite a long time before the child let her family know about this.

Held: The story told by the victim to her mom cannot be used as corro evi as it is a self-corro evi.

NOTE: The case of The King is not followed as M’sia has it own stand on the self-corro evi.

è CONCLUSION

§ Self-corro ie the former statement made by the witness her/himself still admissible but the weight for such evi is qs-able.

è Corroboration for Sexual victim

§ Corro for sexual victim is only a rule of prudence not the rule of law.

§ However, the need to corro evi of the sexual victim has been very much emphasized in every tried case.

§ Rationale of corro for sexual victim:

Issue: Is the sexual intercourse is consented or rape?

Held: Court has regarded such sexual intercourse as a consented one as there is no corro evi to support her allegation.

Issue: Can the uncorro evi given by the witness in sexual case be used in convicting the accused?

Held: Despite no corro for sexual victim’s evi, such uncorro evi still can be used to convict the accused so long as the evi adduced is an unusual convincing evi.

Held: The weight of evi (ie the unusual convincing evi) is important as it will certain up the ring of truth which will leave no doubt in convicting the accused.

Held: ‘Unusual convincing evi’ = the victim during the examination within the trial, must not at all shaken up to say the truth and must always be convincing enough.

è Corroboration for Accomplice

§ Rationale of corro for accomplice:

Held: An accomplice is a person who not deserves a belief. He also has an obvious interest in favouring the authorities in whose hands his own fate lies.

Held: The need to corro for an accomplice is depending on the nature of the witness who is somebody who may have an interest to show other’s guilt and hid his own.

è Who is an’Accomplice’?

Held: ‘Particeps criminis’ = Someone who takes part within the crime or receiving stolen prop or the one who takes active part in the crime.

FOC: Here, the person who witnessed the last moment of the attack & helped to dispose the body was said to be an accessory for such offence.

è S133 of EA

§ An accomplice is a competent witness and a conviction is permissible to be done despite the fact that such evi given by the accomplice is uncorro.

è S114 Illustration B of EA

§ An accomplice is unworthy of credit unless its evi is corro in material particulars.

è HOW TO READ S133 & S114 ILLUSTRATION B OF EA TOGETHER?

§ The court here must decide whether to insist or to set aside the need of the corro for evi given by the accomplice.

MUTUAL CORROBORATION

Held: An accomplice is not allowed to corro another accomplice.

NOTE: However, take note S114 Illustration (b).

è S114 Illustration (b) of EA

Held: Principles laid down –

1) To corro an accomplice is a mere rule of prudence and not the rule of law.

2) Warning of uncorro evi must be given when the evi is given by uncorro accomplice.

3) An accomplice cannot corro another accomplice.

4) If the warning is not done, the appellate court may quash the conviction.

è ‘Agent provocateurs’ (AP) vs ‘Accomplice’?

§ S40A of Dangerous Drug Act 1952: There is no rule of law that can regards the evi given by the AP as unworthy of credit as the AP only abet in such crime as to secure evi vs such accused.

Held: 2 principles laid down:

1) Accused can be convicted based on uncorro evi of the AP.

2) AP evi did not need any corro as it is not the evi given by the accomplice.

è Corroboration for Identification

§ Corro if ID only significant / matter if the case is WHOLLY / SUBSTANTIALLY DEPENDING UPON THE ID.

§ Rationale of corro for ID is to avoid any mistake in accepting such evi in the form of ID.

FOC: There are three cases within this case –

1) Turnbull: It is about the conspiracy to commit burglary. ID was done by a police who has known him prior to the incident. But the ID in this case was done in a glimpse at night.

2) Robert: It is about the accused who has wounded other. ID was done by 2 witnesses in a dark ballroom hall only after 4 ½ months.

3) Whitby: It is about the hurly burly robbery. ID was done in a glimpse and was done when the accused still in the helmet.

Held: There were 3 steps for a qualification in ID.

2) Step 2: Close examination which cover matters such as

i. Observation of the identifier

ii. The distance of the identifier while observing

iii. The source of light while observing

iv. Any obstruction on the view (halangan) while making the observation.

3) Step 3: See for any specific weaknesses of the ID given (this is the case for poor ID). Here, such weak / poor ID must be corro with other type of evi.

Decision for current Case:

è CONCEPT

§ If the ID is qualified as a good one, it does not need to be corro.

§ If the ID is a very poor one, it need to be corro.

§ Corro help to reduce the risk of mistake in ID.

Held: ID rejected as there are too many vagueness in such ID.

FOC: In 2003, the victim (the stepdad), has been struck with a machete (parang). The accused later ran away and later were found in some other place with her shirt cover on blood.

Held: The steps in Turnbull case has been followed. And it is apparent in this case that the accused was the one who did it as there was an apparent blood stains on her shirt.

Held: ID was accepted.

Held: Court in deciding the ID, has followed the steps stated in the Turnbull’s case. The conviction has been set aside for such discrepancy relating to the mask.

NOTE: On the issue of when the court has cautioned itself for such an ID, but still has some discrepancies, it is now up to the court’s discretionary power whether or not to accept such ID.

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Amera Yusof

Summary Note on Law of Evidence : Corroboration (Child / Sexual Victim / Accomplice / Identification)

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