LAW578/591 – LAW OF EVIDENCE II

TUTORIAL QUESTIONS
TOPIC 4 – CORROBORATION

4. Boon was charged for the murder of Madam Gan, an offence under Section 302 of
the Penal Code. The case of the prosecution was that, Boon went into madam Gan’s house
and ran amok. When Madam Gan, who was in the kitchen, realised that someone had
broken into her living room through the front door, she pushed her daughters into the
storeroom and told them to stay quiet. Boon went into the kitchen, pulled a knife out from
the knife holder and stabbed Madam Gan from the back as she was trying to exit the
house. The following evidence was tendered by the prosecution and the defence. Consider
the following situations. Support your answer with reference to the statutory provisions
and decided cases.

a. Gigi, aged 9, the second daughter of Madam Gan gave unsworn evidence that she
saw Boon and another man, whom she could not identify, carried her mother’s body and
threw it into dumpster at the back of the house. She could see it through a peek hole on the
door of the storeroom. The defence objected to this evidence as the court had erred in law
in allowing Gigi to give unsworn evidence without conducting a preliminary examination.

The facts in issue is whether Boon should be convicted for the murder of Madam Gan
under Section 302 of the Penal code.

The first issue is whether Gigi unsworn evidence is relevant and admissible even when
the court failed to conduct a preliminary examination.

Section 118 of the Evidence Act provides that a child is deemed competent to testify if
he can understand the questions put to him and is able to give rational answers. It has been
suggested in court that a child’s evidence in court may be taken sworn or unsworn but an
assessment of his ability to testify must be conducted before his evidence may be admitted. The
child’s ability to understand and apprehend the questions put forward must be examined pursuant
to Yusaini Ahmad case.

The judge has a duty to inquire into the competency of the child witness by asking
questions. The test for determining whether or not a child understand the duty to tell the truth is
whether he understands the divine sanction of the oath and later based on Arumugam a/
Mothiyah v PP, the court will determine if the child is to give sworn or unsworn evidence. This
matter is determined at a preliminary examination.

Court must be really careful in convicting based on a child witness as based on Chao
Chong v PP, there is a danger that the child does not fully understand the effect of taking an oath
or finds it difficult to distinguish between reality and fantasy. The danger is the reason why a
preliminary examination or preliminary inquiry should be carried out. In the case of Muharam
Ansan v PP, after holding an inquiry, the judge accepted the child’s unsworn evidence after
forming the opinion that although she did not understand the nature of an oath, she possessed
sufficient intelligence to justify the reception of her evidence and understood the duty of
speaking the truth.

In the case of Steven A/L Pangiraja & Ors v PP, In the instant case it was contended
before us the evidence of SP3 (the victim) and SP10 (her classmate) who witnessed the victim
being dragged into the car were children and the learned trial judge did not conduct a preliminary
inquiry to test the competency of the witness as required under sections 118 and 133A of the
Evidence Act 1950. There is no requirement under the Act to conduct a preliminary inquiry
though case laws requires the competency to be tested for child of tender years and not child per
se. The learned judge had carefully dealt with the evidence of the child according to law, and this
is reflected in many parts of the judgment. Further, the 15 year old boy could not be said of a
tender year as under section 118 and 133A Evidence Act hence no merit in adduced.

An oral testimony of a witness may sometimes requires corroboration in order to be

credible however it only affects the weight attached to the evidence. Section 133A of the
Evidence Act provides that if a child gives unsworn evidence on behalf of the prosecution and
the evidence is not corroborated, the accused shall not be liable to conviction based upon such
evidence. Corroboration is essential in cases which involves ‘unreliable witness’ such as
accomplices and children.

In application, court allowed Gigi to give unsworn evidence before conducting a

preliminary examination. Gigi would satisfy section 118 Evidence Act since from her testimony
it could be said that she understands the duty of telling the truth, a 9 year old girl could not come
up with such testimony unless she witnessed it herself.

Applying section 133A Evidence Act, Gigi who gave unsworn evidence must have her
evidence corroborated, only then it will be safe to convict Boon for section 302 based on her
testimony. However, the issue is the failure to hold an inquiry. Now based on Muharam Ansan v
PP, such failure to conduct preliminary examination may make it unjustify for court to decide
whether Gigi should give sworn or unsworn evidence. However, based on Steven A/L Pangiraja
& Ors v PP, such failure on behalf of the court will be of no merit if the judge in this situation
have carefully given consideration to other evidence, for instance when there is corroboration
and even in this case it is reasonable to argue that Gigi is not of tender years as defined in section
118 and section 133A, she is in standard three and she is a girl who by science would be mature
earlier as compared to boys, so what she saw and her testimony is relevant and admissible
despite the failure to hold the inquiry or preliminary examination, but, since it is unsworn it must
be corroborated.

In conclusion, the court does not erred in law when he allowed Gigi to make an unsworn
evidence even when there is no preliminary examination if other evidence are well considered.
The failure is not fatal, just an error on procedure and the defence contention shall not stand.
Case good yg baru tu.
Assumption by science tak boleh.

b. The prosecution also called Jenny, aged 10, Madam Gan’s first daughter to
corroborate Gigi’s evidence. She gave sworn evidence. During cross-examination, she said,
“I did not see Boon stabbed my mother but my sister and I heard my mother’s scream
from the kitchen. My sister told me she could see through a peek hole on the door of the
store room that someone had dumped a body at the dumpster at the back of the house.”
The defence submitted that Jenny’s statement could not be used to corroborate Gigi’s
evidence.

The issue is whether Jenny’s statement could be used to corroborate Gigi’s evidence.

An oral testimony of a witness may sometimes requires corroboration in order to be

credible however it only affects the weight attached to the evidence. Section 133A of the
Evidence Act provides that if a child gives unsworn evidence on behalf of the prosecution and
the evidence is not corroborated, the accused shall not be liable to conviction based upon such
evidence. Corroboration is essential in cases which involves ‘unreliable witness’ such as
accomplices and children.

The case of Baskerville makes it clear that a corroboration must be independent, relevant
to the facts in issue or relevant facts, credible, admissible and it must implicate the accused
person in a material particular. Corroboration must evidence itself be either direct or
circumstantial in nature and it has to be admissible. The position of Baskerville is supported in
Mohammad Bin Abdullah v PP.

Section 133A make it clear that the corroboration is mandatory in cases of unsworn
evidence as seen in Mohd Zuki Bin Ali @ Mohamad v PP.

In the case of DPP v Hester, it was stated that an unsworn testimony of a child cannot be
corroborated by another unsworn testimony of a child, it may however be corroborated by a
sworn testimony of a child.
Corroboration however must not be based on a hearsay evidence as it must be
independent and credible as discussed in Baskerville case. Further, there is only 7 exceptions to
hearsay evidence and corroboration does not fall in any one of the exception hence the hearsay
evidence cannot be used to corroborate a witness unsworn evidence.
 In application, Gigi give an unsworn evidence, hence based on section 133A
corroboration is required. Here, corroboration is mandatory since Gigi evidence is unsworn, this
is based on Mohd Zuki Bin Ali @ Mohamad v PP.

Jenny give evidence which may corroborate Gigi’s evidence. Based on DPP v Hester,
Jenny evidence can corroborate Gigi since her evidence is sworn evidence. But the issue now is,
the evidence she gave may not fulfill the requirements of corroboration as listed in Baskerville
which was supported in many malaysian cases like Mohammad Bin Abdullah v PP. Her
evidence cannot be said to be credible and independent as it was hearsay, she hear screams but
the scream cannot be strong evidence to corroborate, the statement as to what Gigi said to her
may be solid for corroboration but since it is a hearsay and does not fall under section 32 of
evidence act or any exception, it may not be used to corroborate Gigi statement

In conclusion, Jenny’s statement could not be used to corroborate Gigi’s unsworn

evidence since it is a hearsay.

Issue /
133A not relevant
App: jenny as sister to jiji could corroborate jijy becs she gave sworn testimony.
Corroborative evidence: previous consistent statement.
Application start hearsay dah tak betul.
c. Samo, Boon’s friend was also called for the prosecution. He said, “Boon and I
carried the woman’s body from the kitchen through the back door to the dumpster at the
backyard of the house and dumped her body there.” The defence counsel argued that Samo
was not competent to testify as he was accomplice. The defence also argued that, if he is
competent, his evidence need to be corroborated.”

As there is no statutory definition of accomplice, Lord Simons in Davies v DPP

suggested an accomplice based on cases are persons falling within the category of Participes
criminis (parties to a crime), receivers in respect of thieves from whom they receive goods; and
parties to a crime which constitutes similar facts. Section 133 provides that an accomplice shall
be a competent witness against an accused person. Subsequently, court may convict the accused
based on evidence of accomplice even though it is not corroborated. This provision must be read
together with illustration (b) of Section 114 that states the court may presume that an accomplice
is unworthy of credit unless he is corroborated in material particulars. Case of Tan See Boon v
Public Prosecutor provides that accomplices should be treated with suspicion because he has an
obvious interest in diverting blame from himself to the person against whom he testifies,
furthermore in securing his fate by giving favour to the authorities.

On the other hand, an accessory is the person who does not procure the commission of
the crime, and neither commits it nor assists in its commission, but actively assists the accused in
concealing the crime is an ‘accessory after the fact.’ Strictly speaking, an accessory after the fact
cannot be an accomplice as he is not concerned in the commission of the original offence. In
Kuan Ted Fatt v Public Prosector, the court did not treat a witness who was present at the time of
the commission of the crime as an accomplice because he had no knowledge that the offender
intended to commit the offence charged. Thus where he has played an active role, his evidence
must be corroborated, but if his role is passive, his evidence may be accepted with the usual
corroboration warning.

In applying, Samo here played an active role in concealing the crime. Samo had helped in
throwing the body at the dumpster. He did not participate in the act of killing nor did he assist the
accused in killing Madam Gan. This is in line in case of Kuan Ted Fatt that Samo here is merely
an accessory since he had no knowledge that Boon wanted to kill Madam Gan. Subsequently, his
testimony since he played an active role must be corroborated. Samo not accomplice.

As a conclusion, Samo was not an accomplice but a mere accessory however since he
played an active role in concealing the evidence his testimony should be corroborated.

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