CORROBORATION

Meaning : Corroboration is not a technical word term. It simply means ‘confirmation

( DPP v Hester [1973] AC 296}

R v Baskerville [1916] 2 KB658 per Lord Reading CJ at page 667

‘evidence in corroboration must be independent testimony which affects the accused by
connecting or tending to connect him with the crime. In other words, it must be evidence
which implicates him, that is, which confirms in some material particular not only the
evidence that the crime has been committed, but also that the prisoner committed it. The
test applicable-to determine the nature and extent of the corroboration is thus the same
whether the case falls within the rule of practice at common law or within that class of
offences for which corroboration is required by statute.... The nature of the corroboration
will necessarily vary according to the particular circumstances of the offence charged. It
would be in high degree dangerous to attempt to formulate the kind of evidence which
would be regarded as corroboration, except to say that corroborative evidence is evidence
which shows or tends to show that the story of the accomplice that the accused committed
the crime is true, not merely that the crime has been committed, but that it was committed
by the accused.'

Thus, to the capable in law of constituting corroboration, the evidence must-

(i) in itself be admissible;

(H> come from a source independent of the evidence requiring to be corroborated;
(iii) be such as to tend to show, by confirmation of some material particular, not only
that the offence charged was committed, but also that it was committed by the
accused; and
(iv) the evidence must be credible.

Certain types of evidence clearly meet these requirements, such as the evidence of an
independent witness which implicates the accused in a material particular, or real evidence
such as the finger prints of the accused found on a murder weapon, or the results of a
medical examination showing that the complainant was most likely raped.

In R v Lim Yam Hong (1921) 14 SSLR 152 in which a conviction for retaining stolen
property was quashed, inter alia, because of the absence of independent evidence
corroborating the testimony of an accomplice.

In Teng Ser Siong v PP [1963] MLJ 263 a case involving murder during the course of a
robbery, it was held on appeal that the discovery of the accused’s watch at the scene of
the crime did not have the effect of confirming in some material particular the accomplice's
evidence that the accused committed the offence. The presence of the watch merely
showed that the accused was present (a fact he had already admitted), not hts
involvement in the murder.

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The need for corroborative evidence

'S. 134 of the Evidence Act 1950 which provides that no particular number of witnesses
shall in any case be required for the proof of any fact. This means that the testimony of
a single witness, if believed, is sufficient to establish any fact (see Khaw Cheng Bok &
Ors v Khaw Cheng Poon & Ors [1998} 1 LNS 340; [1998} 3 MU 457). However, the
facts and circumstances of a particular case may make it desirable for his evidence to
be corroborated.

The position with regard to corroboration as explained by Sinha J said in

Vadivelu Thevar v. State of Madras AIR [1957} SC &14 at page 618-619 can be
stated thus:
t
(1) As a general rule, a court can and may act on the testimony of a single witness
though uncorroborated. One credible witness outweighs the testimony of a
number of other witnesses of indifferent character.

Section 134 of the Evidence Act 1950 says that no particular number cf
witnesses shall be required for the proof of any fact "evidence has to be
.weighed and not counted” - Section 134. It is possible to convict the accused on
the testimony of a single witness if the judge is satisfied beyond reasonable
doubt. ■ The law recognizes, however, that the evidence of certain witnesses
ought to be 1 treated with particular caution owing to the fact that the witness
belongs to a suspect category (e.g. accomplice or children) or owing or to the
nature of the offence (sexual complainants). The requirement of corroboration or
a corroboration warning only applies to witnesses giving evidence for the
prosecution. See Daud bin Awang Ngah & Ors v PP [1958} MU 168.

(2) Unless corroboration is insisted upon by statute, courts snouid not insist on
corroboration except in cases where the nature of the testimony of the single
witness itself requires as a rule of prudence, that corroboration should be insisted
upon, for example in the case of a child witness, or of a witness whose evidence
is that of an accomplice or of an analogous character.

(3) Whether corroboration of the testimony of a single witness is or is not necessary

must depend upon facts and circumstances of each case and no general rule can
be laid down in a manner like this and much depends upon the judicial discretion
of the Judge before whom the case comes.

As to requirement of statute — see ss 133, 133A & 114 illustration (b> Evidence Act
(4) that corroborative evidence is not necessarily restricted lo the oral evidence of an
independent witness. It may be circumstantial as well as direct
Brabakaran v Public Prosecutor [1966} 1 MLJ 64

(5) Corroboration is only required or afforded if the witness requiring corroboration or

giving it is otherwise credible. If his evidence is not credible, a witness's

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testimony should be rejected and the accused acquitted, even if there could be found
evidence capable being corroboration in other testimony
See Deputy Public Prosecutor v Kilbourne [973] 1 All ER 440

the essence of corroborative evidence is where one creditworthy witness confirms what
another creditworthy witness has said (see Yap Ee Kong & Anor v Public Prosecutor
[1981} 1 MU 144.}

A distinction has to be made between corroboration as a matter of law and as a matter of

practice.
t
Where Corroboration Is Required As A Matter of Law: - Section 133A.
Hefe the law requires that there must be corroboration if there is to be a conviction. The
court cannot convict the accused unless there is corroboration ofthe- witnesses' evidence.
If the accused is convicted without corroboration, the conviction is illegal and will be
quashed, e.g. see the proviso to section 133A.

Where Corroboration Is Required As A Matter Of Practice:

Section 133, Section 114 illustration (b>.

Warning is required as a matter of law. This would cover accomplices,,, sexual

complainants and children giving sworn /evidence for the prosecution. Here the tribunal of
fact must remind itself as to the risk of acting on uncorroborated evidence. In this case, it is
mandatory for the judge to warn himself in his judgment that it is dangerous to convict on
the uncorroborated evidence of witness (See Ng Yau Thai v PP [1981] 2 MLJ 214. It should
be noted that the warning as to the danger of convicting on the uncorroborated testimony of
the witness if the prosecution is relying on the testimony of the witness does not involve
some legalists ritual to be automatically recited by the trial judge or magistrate. There is no
magic formula end no set words which, must be adopted to express the warning.

Provided that the warning has been given, the judge may convict on the uncorroborated
evidence of the witness if he is satisfied beyond reasonable doubt of the guilt of the accused.

In a case where a trial judge had in mind the risk of convicting without corroboration but
nevertheless decided to do so because he was convinced of the truth of the complainants
evidence, the judge should make it clear that he has the risk in question in his mind but
nevertheless is convinced by the evidence even though uncorroborated, that the case
against the accused is established beyond reasonable doubt. No particular form of words is
necessary for this purpose. What is necessary is that the judge's mind upon the matter be
clearly revealed see Chiu Nang Hong v PP [1965} 1 MLJ 40. See also Rattan Singh v PP
[1971} 1 MLJ 162,

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 Section 157 Evidence Act

1. Section 157 suggests that a witness may be corroborated by his own former
statement In other words, is it possible to have self corroboration?

2 Examples would include a rape case where the complainant after being raped
makes statements or complaints to certain persons. Section 157 provides that her
evidence in court may be corroborated by, her-previousty made statement.

3. The word ’corroborate' in Section 157 seems to run counter with the. Baskervilfe
definition of corroboration i.e. corroborative evidence must be independent.
*

4. What are the conditions of admissibility to admit a statement under section 157?
Conditions to be satisfied in order to admit the statement to corroborate the
witness’s testimony:-

(i) The witness should given evidence on some fact;

(ii) He should have made a statement previously with regard to the
same fact;
(iii) The statement was made at or about the time the fact took
place;
(iv) The statement may be written or verbal, on oath, or in ordinary 1
conversation or before any authority legally competent to investigate the
fact

PP v Mohamed Terang bin Amit [1999] 1 MLJ 154 - the words at or about the
time the fact took place must mean that the statement must be made at once
or at least shortly after when a "first reasonable opportunity" for making it
presents itself. The primary test is whether the statement was made as early as
can reasonably expected in the circumstances of the case.

It is for the prosecution to establish by clear and unequivocal evidence the

proximity of time between the taking place of the fact and the making of the
statement ( M Rai v Emperor AIR 1952 SC 54 at p 58). Tne primary test is
whether the statement was made as early as can reasonably be expected in
the circumstances of the case and before there was opportunity for tutoring or
concoction. (See Rameshwar v State of Rajesthar AIR 1952 SC 54 at p 58).
The words 'at or about the time 1 must mean that the statement must be made
at once or at least shortly after when a reasonable opportunity for making it
presents itself. The object of the section seems to be to admit statements
made at a time when the mind of the witness is so connected with the events
as to make it probable that his description of them would be accurate. (See
Woodroffe and Amir AH on Evidence (14th Ed) at p 3635.)

PP v Paneerselvan [1991] 1 MLJ 106 - statement in Section 157 means

’something that is stated1 and the element of communication to another person
is not included in it.

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"May be proved" - makes the "use of the former statement discretionary - PP v Dato'Seri
Anwar Ibrahim [1991] 2 MLJ.

The following cases illustrate the reluctance of the courts to accept the former statements
of the witness as corroboration of his/her evidence owing to Baskerville's requirement that
corroborative evidence be Independent: See your case notes.

(i) Mohd AH v PP [1962} MU 32Q;

(ii) Ah Mee v PP [1967} 1 MLJ 220;

(iii) PP v Paneerselvan [1991} 1 MLJ 106

(iv) Karthiyayani & Anor v Leo Leong Sin & Anor [1975] 1 MLJ 119 - It is settled law
that a person cannot corroborated himself. Although the previous statement made under
Section 157 is admissible as corroboration, it constitutes a very weak type of corroborative
evidence, as it tends to defeat the object of the rule that a person cannot corroborate
himself.

Section 157 and Section 73A Evidence Act See

Lim Guan Eng v PP [2000} 2 MLJ 577

Categories of witnesses requiring corroboration

See 133 A Evidence Act

Competence - s. 118 Evidence Act

The proviso to section 133A of the Act in simple terms means this: A conviction cannot
stand on the uncorroborated evidence of an unsworn child witness. It is insufficient for the
trial court to merely administer a warning on the dangers of so convicting as the
amendment now makes it a rule of law, more explicitly, that the evidence of an unsworn
child witness shall be corroborated {Public Prosecutor v Mohd. Noor bin Abdullah [1992] 1
'CLJ 702). This amendment distinguishes ^between the testimony of a sworn and an
unsworn child witness. In the case of a sworn child witness, the old rule of prudence
applies, viz, the need to give an exhaustive warning on the dangers of convicting on such
uncorroborated evidence. Whereas in the case of an unsworn child witness, section 133A
of the Act applies. Per Abdul Maiik Ishak J in Sidek bln Ludan v Public Prosecutor [1995]
3 MLJ, 178, 183(HC)

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Rationale
The evidence of a child must be regarded with suspicion because it is a matter of common
knowledge that children at times find it difficult to distinguish between reality
and fantasy. They find it difficult after a lapse of time to distinguish between the
results of observation and the results of imagination. Juries should be invited to
consider their own experience in connection with stones told by children. Per
Thompson CJ in Chao Chong & Ors v PP [1960} MLJ

Corroboration of Child Evidence:

1. Child Giving Sworn Evidence: Section 11& Evidence Act:

In the-case of a sworn child witness there is a need to give an exhaustive warning on the
dangers convicting on such uncorroborated evidence

In case involving child evidence of tender years, we are of the opinion that it
would not be necessary to give a formal warning that it is dangerous to convict
on the ' uncorroborated evidence, of a child of tender years. It is sufficient if the
judge adopts the prudent course of advising the jury to pay particular attention
to or to scrutinize with special care, the evidence of young children and explains
the tendencies of children to invent and distort. The objection in such a case as
this is not on the grounds rounds-of complicity, as in the case of an accomplice,
or on the ground of an oath against an oath, as in the case of prosecutrix in a
sexual offence against her, but on the grounds of tendency of a child of tender
years to confuse fantasy with reality. Loo Chuan Huat v Public Prosecutor [1971}
2 MU 167.

2. Unsworn Evidence of Child: Section 133A:

Section 133A provides that-in proceedings for any offence, where a child of tender years is
called as a witness for the prosecution and does not understand the nature of the oath,
evidence not under oath may be received it he is sufficiently intelligent to justify the
reception of the evidence and understands the duty of speaking the truth. The proviso to
section 133A provides that the accused shall not be liable to be convicted of the offence
unless that is corroborated by some other material evidence in support thereof implicating
him.

An accused person is not to be convicted on unsworn evidence unless it is corroborated by

some other material evidence in support thereof implicating the accused. The
disqualification applies to all the unsworn evidence-given in a particular case; if there are
two or more giving unsworn evidence to the same effect, still there can be no conviction
unless there is some other evidence corroborating their evidence. The proviso to s. 133A
has incorporated the Baskerville definition of corroboration - hence if a child is giving
unsworn evidence, the evidence relied on as corroboration must satisfy the Baskerville
requirements - for example, a child giving unsworn evidence cannot be corroborated by his
or her own former statements see PP v Muhamad Terang bin Am it [1999] 1 MLJ 154
(HC) 6*

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Mutual Corroboration among children

The position is as follows:

a The sworn evidence of one child can corroborate the sworn evidence of another
child - DPP v Kiltjoume [1973} AC 729 ^
X
b The unsworn evidence of one child can corroborate the sworn evidence of another chHd
and vice versa - DPP v Hester [1973} AC 296
•
The respondent was charged with indecent assault on the complainant, a girl of 12,
contrary to section 14 (1) of the Sexual Offences Act 1956. The complainant gave
evidence on oath. Her nine-year-old sister gave unsworn evidence for the
prosecution under section 38 of the Children and Young Persons Act 1933.

The House of Lords held that the evidence of an unsworn child admitted pursuant
to section 38 could amount to corroboration of evidence given on oath by another
child provided that the unsworn evidence was corroborated as required by the
proviso ;that in the present case the complainant's sworn evidence could
corroborate that of her sister and the sister’s evidence that of the complainant
provided that the jury after suitable adequate guidance and warning were satisfied
that each child was a truthful and satisfactory witness.

The result was that the two girls were capable in law of corroborating each other
(mutual corroboration) where one was sworn and one unsworn, and that the
requirement of the proviso to s 38(1) was satisfied by such corroboration of the
unsworn evidence by the sworn

The provisions of s 133A EA are derived from section 38 of the Children and Young
Person Act 1933 of England.

c. The unsworn evidence of one child cannot corroborate the unsworn evidence of another
child - DPP v Hester.
The court-said that the words in the proviso 'some other material, evidence’ meant
that the corroboration had to come from evidence other than unsworn
evidence.

Can a child's evidence be corroborated by its parent

The court in Teo Keng Pong v PP [1996] 3 SLR 329 held that there was no basis for the
proposition that a parent could not corroborate a child’s evidence. There was no rule of law
that a parent was not an independent witness merely because he was a parent of
the witness

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Accomplices
Who is an accomplice?

Maule J in Regina v Mullins An accomplice is a person who has concurred in the commission of
an offence'

An accomplice who gives evidence for the prosecution may have his own interests to serve. He
may want to minimize his role and exaggerate the part played by the accused in the
commission of the offence or he may just want to attack the accused out of spite.

The leading judicial definition of the term 'accomplice' for the purpose of the corroboration rule is
to be found in Davies v DPP [1954} AC 378
«

The House stipulated that the term includes:

persons who are participes criminis in respect of the actual crime charged, whether as
principals or accessories before or after the fact (in felonies) or persons committing, procuring
or aiding and abetting (in the case of misdemeanors). This is the natural and primary meaning
of the term 'accomplice'. -But in two cases, persons falling strictly outside the ambit of this
category have, in particular decisions, been held to be accomplices for the purposes of the rule,
viz:

i) Receivers have been held to be accomplices of the thieves from whom they receive
goods on a trial of the latter for larceny.

ii) When X has been charged with a specific offence on a particular occasion, and
evidence is admissible, and has been admitted, of his having committed crimes of this
identical type on other occasions, as proving system and intent and negativing accident;
in such cases the court has held that in relation to such other similar offences, if
evidence of them were given by parties to them, the evidence of such other parties
should not be left to the jury without a warning that it is dangerous to accept it without
corroboration.

Who is an Agent provocateur?

An agent provocateur may be a police officer or a secret agent of police who encourages
suspects to carry out a crime under conditions where evidence can be obtained; or who
suggests the commission of a crime to another, in hopes they will go along with the suggestion
and be convicted of the crime.

'Agents provocateurs, spies, informers .detectives and etc not accomplices. Such
persons employed in entrapping criminal 'are entirely distinguished in fact and in
principle from accomplices'. Per Maule J Rv Muliins

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Emperor v Chanturbhuj Sahu SLR 39 cal 96

'A person who makes himself an agent for the prosecution with the purpose of discovering
and disclosing the commission of an offence, either before associating with wrong-doers or
before the actual perpetration of the offence, is not an accomplice but a spy, detective or
decoy whose evidence does not require corroboration, though the weight to be attached to
it depends on the character of each individual witness in each case. But a person who is
associated with an offence with a criminal design, and extends no aid to the prosecution till
after its commission is an accomplice requiring corroboration'
It may be difficult to draw the line of discrimination between an accomplice and a pretended
confederate, such as a detective, spy or decoy; but we think, that the line may be drawn in
this way:- If the witness has made himself an agent for the prosecution, before associating
with the wrong-doers or before the actual perpetration of the offence, he is not an
accomplice; but he may be an accomplice if he extends no aid to the prosecution until after
the offence has been committed

The reception of the evidence of an agent provocateur

Lord Diplock in R v Sang

'The conduct of the police where it involved the use of an agent provocateur may well be a
matter to be taken into consideration in mitigation of sentence; but under the English
system of criminal justice, it does not give rise to any discretion on the pari of the Judge
himself to acquit the accused or to direct the jury to do so, notwithstanding that he is guilty
of the offence.'

'However much the judge may dislike the way in which a particular piece of evidence was
obtained before the proceedings were commenced, if it is admissible evidence probative of
the accused’s guilt it is no part of his judicial function to exclude it for this reason.’

Lord Goddard in Kuruma v The Queen [1955] AC 197

‘a trial judge has no discretion to refuse to admit relevant evidence on the ground that it
was obtained by improper or unfair means. The court is not concerned with how it was
obtained. It is no ground for the exercise of discretion to exclude that the evidence was
obtained as the result of the activities of an agent provocateur.'

Lord Salmon —

'A man who intends to" commit a crime and actually commits it is guilty of the offence
whether or not he has been persuaded or induced to commit it, no matter by whom. This
being the law, it is inconceivable that, in such circumstances, the judge could have a
discretion to prevent the Crown from adducing evidence of the accused's guilt — for this
would amount to giving the judge the power of changing or disregarding the law. It would
moreover be seriously detrimental to public safety and to law and order, if in such
circumstances, the law immunized an accused from conviction. There are,

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however, circumstances in which an accused's in which an accused’s punishment in such a
case might be mitigated, and sometimes greatly mitigated.'

How to determine whether a person is an accomplice or an agent provocateur?

The point for determination appears to be whether the witness entered into the conspiracy
with the sole object of detecting and betraying it or whether he is a person who concurred
fully in the chminal design of his co-conspirators for a time and joined in the execution of
these tm out of fear or for some other reason he withdrew from the conspiracy and gave
information to the authorities. If he extends no aid to the prosecution until after the offence
has been committed, he would be an accomplice. If he onginally joined the conspiracy with
the sole object of taking part in the crime, he cannot change his position to that of an
informer by subsequently giving information of the crime Sarkar at page 1280

Rationale for corroboration requirement

1. accomplice is an infamous person and as such not deserving of belief. He has an

obvious interest in diverting blame from himself to the person against whom he
testifies. He also has an obvious interest in currying favour with the authorities in
whose hand his own fate lies and by reason of his knowledge as an accomplice he
is in a peculiarly favourable position to concoct plausible false evidence. Tan See
Boon PP [1966} 1 MLJ 219 -

2 being a participator in crime, and consequently an immoral person, is likely to disregard

the sanction of an oath;
3. because an accomplice gives his evidence under the promise of a pardon, or in the
expectation of an implied pardon if he discloses aii he knows against those with
whom he acted criminally, and this hope would lead him to favour the prosecution
[per SCOTT J, in R v Maganlal, 14 B 115; Md Usaf v R.A 1929 N 215} see Sarkar
on Evidence, 14m. Edition, at page 1942
What is the legal requirement on corroboration with respect to accomplice evidence ?

Under the Evidence Act

Section 133 provides that a conviction is not illegal merely because it proceeds on
the uncorroborated evidence of an accomplice.

Section 114(b) provides that the court may presume that an accomplice is unworthy of
credit unless he is corroborated in j material particular. The words' may presume'

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indicates that the court has a discretion as to whether to make the presumption that e
accomplice is unworthy of credit-see section 4(1) of the Evidence Act 1950.

•ow does the court deal with accomplice evidence?

The accomplice rule applies only to a witness called for the prosecution
Is the duty of the prosecution to bring to the notice of the court the fact that
a witness is an accomplice and whether he had been convicted.
Rigby J in Jaafar b Deris v PP [1956] MLJ 183
•

'Quite clearly, it was the prosecution, when calling this witness before the
court, to elicit from this witness at once that he had been an accomplice in
disposing of the property, and that he had been convicted and sentenced as
such. If this had been done, then the court, although considering him an
accomplice, would have been in a position to decide as to the credibility of his
evidence, bearing in mind the fact that he had already been convicted and
sentenced and, therefore, had nothing to gain by giving false testimony on
behalf of the prosecution.'

3. The court must first decide whether a witness is an accomplice.

’ A magistrate should first decide whether a witness is an accomplice, then
determine on the evidence whether he is corroborated in any material
particular; and then, if he is not corroborated, subject the accomplice's
evidence to close scrutiny to satisfy himself that, without corroboration, there is
nevertheless evidence which is credible and sufficient to establish the guilt of
the accused’ -

Ong Hock Sim FC in Nathan v PP [1972} 2 MLJ 101

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