You are on page 1of 33

Pengenalan Kepada Keterangan Sokongan

Dr jal zabdi mohd yusoff


Keterangan Sokongan
Seksyen 134. Bilangan saksi.
Tiada bilangan tertentu bagi saksi dikehendaki dalam mana-mana kes untuk membuktikan
sesuatu fakta.

Berdasarkan kepada s. 134 AK ini bermakna, hanya seorang saksi adalah memadai untuk
membuktikan sesuatu fakta.

Pada amnya, undang-undang tidak memfokuskan kepada jumlah saksi yang memberi
keterangan untuk menentukan sama ada sesuatu fakta yang ditegaskan itu telah dibuktikan.
Sebaliknya, undang-undang lebih mementingkan kualiti keterangan yang diberikan. Ini
adalah kerana sekiranya terdapat keterangan daripada seorang saksi yang boleh dipercayai,
maka ia adalah lebih baik daripada 10 orang saksi yang kualiti keterangan mereka diragui.
Credibility/ reliability is condition precedent to corroboration: Aziz bin
Muhamad Din v PP
• It must be noted that the question of corroboration does not arise unless the
evidence of the witness requiring corroboration is itself credible. In this regard Gunn
Chit Tuan J (as he then was) said in TN Nathan v PP [1978] 1 MLJ 134 at p 137:

• Lord Hailsham has expressed a similar opinion in the English House of Lord's case of
DPP v Kilbourne [1973] 1 All ER 440 when he said at p 452:

• '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 testimony
should be rejected and the accused acquitted, even if there could be found evidence
capable of being corroboration in other testimony. Corroboration can only be
afforded to or by a witness who is otherwise to be believed. If a witness's testimony
falls of its own inanition the question of his needing, or being capable of giving,
corroboration does not arise.'
• See also
• Mohd Azam bin Basiron (in Accomplice).
Kes: Aziz bin Muhamad Din v Public Prosecutor
[1997] 1 CLJ supp. 523
Section 134 of the Evidence Act 1950 (‘the Act’) states that ‘no
particular number of witness shall in any case be required for
the proof of any fact.’ The section enshrines the well-
recognised maxim that ‘evidence has to be weighed and not
counted’.

Kualiti keterangan vs Kuantiti Keterangan


Balachandran v Public Prosecutor [2005] 1 CLJ 85
• Where the evidence of a witness does not require to be
corroborated in law there is no obligation to tender corroborative
evidence to support his testimony.
• Thus if the case for the prosecution rests solely on the evidence of
one witness in such a category there is no requirement in law for
his evidence to be corroborated.
• Any such requirement will conflict with 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
Keterangan Sokongan
Sungguhpun, keterangan oleh seorang saksi adalah memadai
terdapat keadaan yang mana lebih daripada seorang saksi adalah
diperlukan. Keadaan ini berlaku apabila terdapat keperluan sama
ada dari segi undang-undang atau amalan/kebijaksanaan

Keterangan sokongan – apabila seseorang saksi itu memberi


keterangan terdapat keperluan sama ada dari segi undang-undang
atau amalan/kebijaksanaan untuk keterangan saksi berkenaan di
sokong oleh keterangan lain.
Vadivelu Thevar v. State of Madras AIR [1957] SC
614
Sinha J said in :
On the consideration of the relevant authorities and the provisions of the Evidence Act, the following
propositions may be safely stated as firmly established:
(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.
(2) Unless corroboration is insisted upon by statute, courts should 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.
Rule of Law and Rule of Prudence
Rule of Law
1. Kanak-Kanak (Seksyen 133A)

Rule of Prudence
1. Mangsa Kesalahan Seksual
2. Rakan Sejenayah
3. Saksi Berkepentingan
(only requires a more careful scrutiny of their evidence)
Aziz bin Muhamad Din v PP
• Generally in Malaysia there is no specific rule of law that requires
the evidence of a witness to be corroborated except in the case of
the evidence of a child of tender years under s 133A of the Act.
• However, in certain types of cases there is a rule of practice which
requires evidence to be corroborated. This includes the evidence of
a complainant in a case involving a sexual offence.
• Even in such cases a conviction based on uncorroborated evidence
is not illegal. But the rule of practice regulates the manner in which
uncorroborated evidence is to be treated, that is to say, the judge
must warn himself of the dangers of convicting on such evidence. In
saying that the warning must appear in the judgment or grounds of
decision of the trial court though no particular form of words need
be used.
Rationale of corroboration is different:
Din v Public Prosecutor

• The rule relating to corroboration, like most of the other rules of our law
of evidence, is not a purely technical rule contravention of which is fatal
to a conviction. The rules of evidence are not rules for governing a
forensic game of chess; they are rules for the administration of justice and
they are based on accumulated human experience and common sense.
That particularly applies to the rules relating to corroboration.
• In the case of accomplice evidence the need for corroboration arises from
the nature of the witness who is somebody who may have an interest in
making out the guilt of another in preference to his own. Again in the case
of children's evidence the need arises from the notorious unreliability of
children as witnesses and in particular their known aptitude to confuse
fact with fantasy. Neither in the case of accomplices nor children,
however, is there any connection with the nature of the offence. The
evidence of an accomplice or of a child calls for corroboration just as
much in a case of assault or theft as in a case of murder.
• But the desirability for corroboration of the evidence of the prosecutrix in a rape
case (which in any event has not yet crystallized into something approaching a rule
of law and which is still a rule of practice and of prudence) springs not from the
nature of the witness but from the nature of the offence. Never has it been
suggested that the evidence of a woman as such invariably calls for corroboration. If
a woman says her handbag has been snatched and if she is believed there can be no
question of a conviction on such evidence being open to attack for want of
corroboration. If, however, she complains of having been raped then both prudence
and practice demand that her evidence should be corroborated.
• Here, however, the necessity for corroboration, generally speaking, is not so
imperative with regard to the identity of her assailant as to the fact of the offence
itself. It is here that there is danger. The temptations of a woman to exaggerate an
act of sexual connection are well known and manifold. But though it might be
dangerous to find the factum of rape on the uncorroborated evidence of the
prosecutrix, once that factum of rape is established, there seems to be nothing left
to support the view that her identification of the assailant calls for corroboration
any more than it would in relation to any other type of offence.
Mohd Yusof B. Rahmat v Pendakwa Raya
[2009] 2 CLJ 273
• We must distinguish between a statement that should be
corroborated because of the nature of the offence e.g. rape or
corruption and that because the tender age of the witness.
• The first requires corroboration because the honesty of the
witness may be questionable. These offences are easy to allege
but difficult to disprove.
• The second because of the tender age of the witness who
could be influenced by adults and his own imagination.
• The evaluation of evidence in each of the categories must be
distinguished.
Apa itu Keterangan Sokongan?

• Director of Public Prosecution v. Hester [1973] AC 296).


Corroboration is not a technical term. It simply means “confirmation” or
“support”.

Attan Abdul Ghani v Public Prosecutor [1970] 2 MLJ 143, keterangan sokongan
adalah keterangan yang boleh menyokong atau dapat menunjukkan bahawa
keterangan yang diberikan oleh saksi yang keterangannya perlu disokong itu benar.

Kes : Aziz Mohamad Din


In Doney v R (1990) 171 CLR 207 it was held that consistent with its role of
confirming other evidence rather than amounting itself to evidence which
necessarily leads to conviction, the corroborative evidence does not need to be
proven beyond reasonable doubt.
R v Baskerville [1916]2 KB 658

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.
R v Baskerville [1916]2 KB 658
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 implicate 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.
(keterangan sokongan dalam undang-undang keterangan hendaklah
bebas, melibatkan tertuduh dan juga mengaitkan tertuduh dengan
kesalahan yang dipertuduh)

R v Kerim
The word 'implicate' does not necessarily mean 'incriminate' or
'inculpate'; it may mean only 'involve‘.
R v Baskerville [1916]2 KB 658
• "confirmation does not mean that there should be independent evidence of that
which the accomplice relates, or his testimony would be unnecessary": Reg. v.
Mullins (1), per Maule J.
• Indeed, if it were required that the accomplice should be confirmed in every detail
of the crime, his evidence would not be essential to the case, it would be merely
confirmatory of other and independent testimony.
• Again, the corroboration must be by some evidence other than that of an
accomplice, and therefore one accomplice's evidence is not corroboration of the
testimony of another accomplice: Rex v. Noakes.
• The corroboration need not be direct evidence that the accused committed the
crime; it is sufficient if it is merely circumstantial evidence of his connection with
the crime. A good instance of this indirect evidence is to be found in Reg. v. Birkett.
(2) Were the law otherwise many crimes which are usually committed between
accomplices in secret, such as incest, offences with females, or the present case,
could never be brought to justice.
• Dalam kes Brabakar v PP :
Corroborative evidence is not necessarily restricted to the oral evidence of
an independent witness. Corroboration can equally well be afforded by
established facts and the logic of established facts sometimes speaks more
eloquently than words.

Dalam Kes Attan Abdul Ghani v PP


Thus, corroboration need not be direct evidence that the accused
committed the crime. It is sufficient if it is merely circumstantial
evidence of his connection with the crime. Corroboration must be in
material particulars and it is not necessary that the whole prosecution story
or all material particulars should be corroborated:
Tang Kin Seng v. Public Prosecutor [1997] 1 SLR 46
This is but common sense. The only surprise is that it took so long for it to be recognised. If a
conviction for an offence can be secured solely on circumstantial evidence, there is no reason at all
why corroboration cannot also be based purely on circumstantial evidence.

Prinsip
Mahkamah tidak menetapkan apakah fakta yang terjumlah kepada keterangan
sokongan. Sebaliknya ia bergantung pada fakta kes untuk menentukan jenis
keterangan sokongan yang diperlukan.
PP v. LIM KIANG CHAI [2016] 4 CLJ 173
Thus, corroboration need not be direct evidence that the accused
committed the crime. It is sufficient if it is merely circumstantial
evidence of his connection with the crime. Corroboration must be in
material particulars and it is not necessary that the whole
prosecution story or all material particulars should be corroborated.

Surrounding circumstances leading to commission of offence -


Whether events preceding offence to be considered?
• In our judgment the shooting incident on 18 February 2005 should not be considered in
isolation from with the events that preceded the murder. It must be considered in the light of
the surrounding circumstances leading to the murder. The case for the prosecution was that
the murder was committed pursuant to a prearranged plan.
• The target was Fabian Lim.
• His office address was identified but no one had his photograph. Evidence was adduced that
on 22 January 2005 the deceased's law firm was burgled.
• The prosecution called PW16 and PW20 who gave evidence that on 1 February 2005 the
deceased's car was trailed by a Proton Wira car No. BFJ 9275 driven by PW23 with PW26 as a
passenger. PW23 and PW26 were arrested by the police on the same day, acting on
information given by PW20.
• Hilman bin Sutt (PW18), who was a clerk at the deceased's law firm testified that a few days
before the break in he saw a male Chinese with another person, sitting on a motorcycle
parked next to the law firm. This Chinese male later walked up the staircase to the said law
firm. He later identified him, at an identification parade, as Sim Eng Huat (PW26).
• On 22 January 2005 the deceased's office was broken into. The deceased lodged a police
report of the break in. Several items, including some bags, a one million ringgit cheque and
photographs containing the deceased's picture were stolen. This evidence came from PW16,
the deceased's wife and PW20.
• PW26 admitted in evidence that he had trailed the deceased
about a month before the deceased was murdered.
• He admitted that he was arrested together with PW23, while
trailing the deceased in the Proton Wira car and pleaded guilty to
a charge under s. 118 of the Penal Code (concealing an offence
punishable with death).
• He admitted that on 18 February 2005 he trailed the deceased's
car to the restaurant and saw the pillion rider open fire at the car
when it was reversing out of the parking lot.
• He saw the pillion rider flee on a motorcycle ridden by another
person. He said he knew the pillion rider and the rider of the
motorcycle.
• However, we find that there are ample independent evidence to corroborate
PW26's evidence in material particulars.
• PW16's evidence that the deceased's car had been trailed by a golden coloured
Proton Wira corroborated PW26's evidence that he had been trailing the
deceased's car before the deceased was shot.
• PW20 could even see the Proton Wira car from his office and took down the car's
registration number before passing the information to the police who arrested
PW26. PW18 who identified PW26 as the person who walked up the staircase
leading to the deceased's office supported PW26's evidence that he had been
observing the deceased going into and leaving his office.
• ASP Wong Chee Keong (PW21) gave evidence that PW26 brought him to the place
where the badly burnt motorcycle which was allegedly ridden by the respondent
on the day of the shooting was found. There is no ground for us to interfere with
the assessment of PW26's evidence by the learned trial judge.
Public Prosecutor v Hashim bin Hanafi [2002] 4 MLJ 146 (Tujuan
Keterangan Sokongan)
• Augustine Paul J (as he then was) said :
• The purpose of corroboration is not to give validity or credence to
evidence which is deficient or suspect or incredible but only to confirm and
support that which as evidence is sufficient and satisfactory and credible
(see DPP v Hester [1972] 3 All ER 1056).
• Its role is to confirm other evidence in the sense that it renders that other
evidence more probable (see Doney v R (1990) 171 CLR 207; DPP v
Kilbourne [1973] AC 729). It cannot therefore amount to that other
evidence itself. Thus the record of an information will only enhance the
credibility of the witness and the absence of it cannot render the oral
evidence of it inadmissible; nor can it be a substitute for the evidence that
it is meant to corroborate.”
Director of Public Prosecutions v Kilbourne [1973] 1
All ER 440
• There is nothing technical in the idea of corroboration. When in the ordinary
affairs of life one is doubtful whether or not to believe a particular statement
one naturally looks to see whether it fits in with other statements or
circumstances relating to the particular matter; the better it fits in, the more one
is inclined to believe it. The doubted statement is corroborated to a greater or
lesser extent by the other statements or circumstances with which it fits in.

• The other statements or circumstances are only of value if, having regard to what
is in issue, they come from a source or sources independent of the accomplice
and go some part of the way towards proving guilt, by tending to show that the
offence was committed and that the accused committed it.
• It is therefore always important to consider:
• (1) what are the real issues in the case;
• (2) what the evidence being put forward as corroboration
does in fact prove. The proof may of course come from
several sources, and in that sense corroboration may be
cumulative as already illustrated;
• (3) whether that evidence: (a) comes from a source or
sources independent of the accomplice; (b) goes some
significant part of the way towards showing that the
offence was committed and that the accused committed it.
Corroboration Warning
(Aziz bin Muhamad Din v PP [1997] 1 CLJ supp. 523)

• Generally in Malaysia there is no specific rule of law that requires the evidence
of a witness to be corroborated except in the case of the evidence of a child of
tender years under s 133A of the Act. However, in certain types of cases there is
a rule of practice which requires evidence to be corroborated. This includes the
evidence of a complainant in a case involving a sexual offence.
• Even in such cases a conviction based on uncorroborated evidence is not illegal.
But the rule of practice regulates the manner in which uncorroborated evidence
is to be treated, that is to say, the judge must warn himself of the dangers of
convicting on such evidence. In saying that the warning must appear in the
judgment or grounds of decision of the trial court though no particular form of
words need be used.
Ng Yau Thai v PP [1987] 2 MLJ 214

• The warning as to the danger of convicting on


uncorroborated evidence if the prosecution is relying
on the testimony of an accomplice does not involve
some legalistic ritual to be automatically recited by
the trial magistrate, or that some particular form of
words or incantation be used and if not used, the
judgment is deemed to be faulty and the conviction
set aside. There is no magic formula and no set words
which must be adopted to express the warning.
• Chiu Nang Hong v PP [1965] 1 MLJ 40 said at p 43:

• … No particular form of words is necessary for this purpose:


what is necessary is that the judge's mind upon the matter
should be clearly revealed.
Attan Abdul Ghani v PP [1970] 2 MLJ 143b
• The law as to corroboration as enunciated by the various authorities may be summarised thus:–
• "It would be impossible, indeed it would be dangerous, to formulate the kind of evidence which should, or
would, be regarded as corroboration. Its nature and extent must necessarily vary with the circumstances of each
case and also according to the particular circumstances of the offence charged. But to this extent the rules are
clear:–
• (1) It is not necessary that there should be independent confirmation of every material circumstance in the
sense that the independent evidence in the case, apart from the testimony of the complainant or the
accomplice, should in itself be sufficient to sustain conviction. All that is required is that there must be some
additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is
reasonably safe to act upon it.
• (2) The independent evidence must not only make it safe to believe that the
crime was committed but must in some way reasonably connect or tend to
connect the accused with it by confirming in some material particular the
testimony of the accomplice or complainant that the accused committed the
crime.
• (3) The corroboration must come from independent sources and thus ordinarily
the testimony of one accomplice would not be sufficient to corroborate that of
another.
• (4) The corroboration need not be direct evidence that the accused committed
the crime. It is sufficient if it is merely circumstantial evidence of his connection
with the crime.
• (5) Corroboration must be in material particulars but it is not necessary that the
whole prosecution story or all material particulars should be corroborated.
• (6) Corroborative evidence required for accepting the testimony of an
accomplice need not by itself conclusively establish the guilt of the accused. It is
sufficient if it is a piece of circumstantial evidence which tends to connect the
accused with the crime with which he is charged.
• (7) Though a trap-witness is not an approver, he is certainly an interested witness
in the sense that he is interested to see that the trap laid by him succeeded. He
could at least be equated with a partisan witness and it would not be admissible
to rely upon his evidence without corroboration. His evidence is not a tainted
one; it would only make a difference in the degree of corroboration required
rather than the necessity for it.
• (8) Corroboration need not be by direct evidence. It may be by circumstantial
evidence in which case the rule relating to proof from circumstantial evidence
would apply and the circumstance must be consistent with the innocence of the
accused against whom the circumstance is offered as evidence.
• (9) There must be corroboration in one or more material particulars but
that does not mean in every particular or detail. Corroboration, as the
grammatical meaning of the word itself implies, means only support, or in
other words, an assurance of truth which is lent to the evidence of the
accomplice or the complainant by other evidence. It does not mean that
the whole evidence given by the accomplice (or complainant) must be
repeated wholly or in parts by witnesses other than the accomplice (or the
complainant).
• (10) The minimum corroboration which the law ordinarily requires of the
evidence of an accomplice is evidence of at least one material fact pointing
to the guilt of the accused person. The weight of such corroborative
evidence which is necessary depends on the particular facts and
circumstances of the case."