Chapter 12 - Witness Flashcards

Question 1

Q

WITNESS

Overview

Answer

A

1) Competency of a witness
2) Compellability of a witness
3) Privilege of a witness
4) Creditworthiness of a witness

Question 2

Q

COMPETENCY OF A WITNESS

Overview

Answer

A

1) Child witness

2) Spouse witness

Question 3

Q

COMPETENCY OF A CHILD WITNESS

Overview

Answer

A

1) Obligation to hold preliminary inquiry
2) Object of preliminary inquiry
3) Procedure of preliminary inquiry
4) Expert evidence & duty of court in preliminary inquiry
5) Failure to hold preliminary inquiry
6) Incompetent child witness
7) Competent child witness
8) Presumption as to competency

Question 4

Q

COMPETENCY OF A CHILD WITNESS

Obligation to hold preliminary inquiry

Answer

A

1) The law:
- S.133A
2) Application - Sidek bin Ludan v PP:

Ref. 133A:

Trial Court is obligated by way of a preliminary examination to ascertain the child’s capacity to understand and give rational answers.

Ref. S.118:

The Court has to ascertain the intellectual capacity and understanding of the witness (child witness included) to give a rational account of what he has seen or heard or done on a particular occasion.
Thus, the Court is entitled to test the capacity of a witness by putting proper questions.

Question 5

Q

COMPETENCY OF A CHILD WITNESS

Object of preliminary inquiry

Answer

A

Muharam bin Anson v PP:

The object of the preliminary inquiry is to determine:

(i) whether the child is competent to give evidence, and;
(ii) if he is a competent witness, whether he is in a position to be sworn.

Question 6

Q

COMPETENCY OF A CHILD WITNESS

Procedure of preliminary inquiry

Answer

A

Augustine Paul in Evidence Practice & Procedure, ref. to in Sidek bin Ludan:

there is no specific procedure for the inquiry;
it is sufficient for the trail court to adopt its own process to ascertain the child’s capacity.

Question 7

Q

COMPETENCY OF A CHILD WITNESS

Expert evidence & duty of court in preliminary inquiry

Answer

A

Yusaini bin Mat Adam v PP:

It was the duty of a court or judge to determine competence (competency) and the proper level of competence (sworn or unsworn) before proceeding to admit evidence from a child.
i.e. child being asked questions by the trial judge, calling of expert opinion evidence from child psychologists.

Question 8

Q

COMPETENCY OF A CHILD WITNESS

Failure to hold preliminary inquiry

Answer

A

Yusaini bin Mat Adam v PP:

Failure of the sessions judge to hold such an enquiry and follow the procedure in s. 133A of the Act renders the conviction liable to be set aside.
Ref. R v Khan: If a child was allowed to testify without preliminary inquiry, any conviction based on that child’s evidence was liable to be quashed on the ground of material irregularity.

Question 9

Q

COMPETENCY OF A CHILD WITNESS

Incompetent child witness

Answer

A

Lee Lik Tian v PP:

It is desirable for Trial Court to make a record of its satisfaction as to competency of the child witness as to do so as this would assist the Appellate Court;
If the learned trial judge that the child witness was incompetent, then she would be rejected as a witness.

Question 10

Q

COMPETENCY OF A CHILD WITNESS

Competent child witness

Answer

A

1) General - what is next:
- If the judge finds that the child is competent to give evidence, the next question is whether the child should be sworn or not.
2) Application - R v Hayes:
- the judge has to see whether the child has a sufficient appreciation of the solemnity of the occasion and the added responsibility to tell the truth, which is involved in taking an oath.
3) Application - Yusaini bin Mat Adam v PP:

It was the duty of a court or judge to determine the proper level of competence before admitting evidence from a child.
Having determined the competency of a child witness, it was necessary to establish by positive means that the child understood the ordinary duty of telling the truth.

Question 11

Q

COMPETENCY OF A CHILD WITNESS

Presumption as to competency - the law

Answer

A

2) S.18 SOCA:

-

Question 12

Q

COMPETENCY OF A CHILD WITNESS

Presumption as to competency - application

Answer

A

Ahmad Hafizal Darusalam v Pendakwa Raya:

Charge: S.19 SOCA
1) Competency - S.17 SOCA:
trial judge found that PW1 is a credible & truthful witness;
however, the court still hold preliminary inquiry & held that
the child understood the duty of telling the truth & allowed her to give sworn statement.

2) Corroboration - S.18 SOCA:

for charge under Act 792, court is allowed to convict an accused based on evidence of a child, either sworn or unsworn;
however OTF, court agreed with the trial judge findings that there are corroborative evidence to support the child witness evidence.

Question 13

Q

COMPETENCY OF A SPOUSE WITNESS

Overview

Answer

A

1) The law & scope

2) Application

Question 14

Q

COMPETENCY OF A SPOUSE WITNESS

The law & scope

Answer

A

1) Civil proceedings - S.120(1):
- the husband or wife of any party in a civil proceeding shall be a competent witness;
2) Criminal proceedings - S.120(2):
- in criminal proceedings, the husband or wife of an accused shall be a competent witness.

Question 15

Q

COMPETENCY OF A SPOUSE WITNESS

Application - civil cases

Answer

A

Tokio Marine Insurance (M) Sdn Bhd v Rathakrishnan Ramatasu:

S. 120 (1) EA 1950 provides that parties in civil proceedings are competent witnesses.
Court of Appeal held that there is no legal prohibition against a plaintiff calling a defendant to be his witness.
But if the plaintiff elects to call the defendant as his witness, he runs a risk if the defendant turns out to be a hostile witness.

Question 16

Q

COMPETENCY OF A SPOUSE WITNESS

Application - criminal cases

Answer

A

Public Prosecutor v. Abdul Majid (HC):

Per James Foong HCJ:

S.120 makes a husband or a wife a competent witness against any person in criminal proceedings.
However, S.122 has reference to the issue of compellability;
The effect of both sections is in the course of her testimony, if there had been any communication by the accused to her, such communication cannot be compelled to be disclosed by her unless the consent of the accused is obtained as provided for under s. 122.

Question 17

Q

COMPELLABILITY OF A WITNESS

Overview

Answer

A

1) The law & scope

2) General principles

Question 18

Q

COMPELLABILITY OF A WITNESS

General rule & exceptions

Answer

A

1) General rule - Ghouse b Hj Kader Mustan v R:

A witness who is competent is also compellable to give evidence (unless he is privileged);
If a witness is competent and has been summoned to court, he is bound to give evidence and to answer all relevant questions.

2) Incriminating answers - S.132 EA & Chye Ah San v R:

A witness is bound to answer all relevant questions even if they may tend to criminate him;
The only situation in which a witness cannot be compelled by the Court to give evidence is where he is entitled to one of the privileges as provided under the EA.

3) General rule for an accused person:

Whether competent: S.120(3) EA
An accused person is a competent witness;
Whether compellable: Lim Lye Hock v PP:
An accused person, though competent, is not compellable to do so.

4) Exception - Ghouse bin Hj Kader Mustan v R:
- The only situation in which a witness cannot be compelled by the Court to give evidence is where he is entitled to one of the privileges as provided under the EA.
5) Examples of privilege:

S. 121 – No judge, Sessions Court Judge and Magistrate shall be compelled to answer any questions as to his own conduct in court as Judge, Sessions Court Judge and Magistrate.
S. 122 – Communications during marriage.
S. 123 – Affairs of the state.
S. 124 – Confidential communications.
S. 125 – Information as to the commission of offence received by Sessions Court Judge, Magistrate, police or revenue officer.
SS. 126 – 129 – Legal professional communications.
SS. 130 – 131 – Right to refuse production of documents.

Question 19

Q

PRIVILEGE OF A WITNESS

Overview

Answer

A

1) Communications during marriage
2) Privilege against self-incrimination
3) Legal professional communication privilege
4) Litigation privilege
5) Exceptions to legal communication & litigation privilege
6) Communications of the affairs of the state
7) Conduct of judge

Question 20

Q

COMMUNICATIONS DURING MARRIAGE

Overview

Answer

A

1) The law & scope
2) Lifespan of privilege
3) Scope of privilege
4) Recent application

Question 21

Q

COMMUNICATIONS DURING MARRIAGE

The law & scope

Answer

A

S.122

2) Scope - Public Prosecutor v Abdul Majid:

The Court may compel spouse to testify in civil suits by virtue of S.120.
However in the course of her testimony, if there had been any communication by the accused to her, such communication cannot be compelled to be disclosed by her unless the consent of the accused is obtained, as per S.122.

Question 22

Q

COMMUNICATIONS DURING MARRIAGE

The law & scope

Answer

A

S.122

2) Scope - Public Prosecutor v Abdul Majid:

The Court may compel spouse to testify in civil suits (either civil or criminal) by virtue of S.120.
However in the course of her testimony, if there had been any communication by the accused to her, such communication cannot be compelled to be disclosed by her unless the consent of the accused is obtained, as per S.122.

Question 23

Q

COMMUNICATIONS DURING MARRIAGE

Scope of privilege

Answer

A

1) General - Lim Lye Hock v PP:

only marital communications are privileged;
if a wife sees her husband committed an offence, she is both competent and compellable to testify on what she had seen.

2) Inextricably intertwined communication - Palldas Arumugam v PP:

If the communications are so inextricably intertwined with the acts that it is difficult if not impossible to separate them, then the privilege may apply to the acts as well;
Even if extricable & rejecting the words spoken, one would have their prejudicial effect still lingering.

3) Eavesdropping - Palldas Arumugam v PP:

The privilege exists between spouses only;
If a third party eavesdrops on the conversation he may not be prevented from adducing evidence, subjected to rule of hearsay.

4) Marriage comes to an end - Ibrahim b Awang Mat v Ibrahim b Dollah [1987]:
- so long as the communications are made during the marriage, they continue to be privileged even if the marriage comes to an end subsequently.

Question 24

Q

COMMUNICATIONS DURING MARRIAGE

Failure to object

Answer

A

Palldas Arumugam v. PP:

“Even though objection was not taken by the defence, this silence cannot convert what the law says is inadmissible evidence to be admissible.”
Therefore, failure to object does not amount to waiver & the defence is not precluded from objecting the evidence from being admitted at the end of prosecution case.

Question 25

Q

COMMUNICATIONS DURING MARRIAGE

Recent application

HC, 2019

Answer

A

PP v Muhammad Yusof Mohd Azam & Ors:

Court expunged the evidence of the accused’s spouse on the basis of privilege under S.122;
The failure of the defence to object does not preclude him to raise objection during submission at the end of prosecution case.

Question 26

Q

PRIVILEGE AGAINST SELF-INCRIMINATION

Overview

Answer

A

1) Law & scope
2) Duty of judge to explain
3) Scope of protection from charges

Question 27

Q

PRIVILEGE AGAINST SELF-INCRIMINATION

The law & scope

Answer

A

1) The law:

S.132, i.e. no privilege against self-incrimination.
but there is protection against criminal charges other than perjury.

2) Scope - Chye Ah San v R:

Under S.132, a witness is bound to answer all questions even though it will tend to incriminate him.
However, if he is forced to answer such questions, no proceedings can be taken against him based upon his answers except for perjury.
If the witness refuses to answer, he must be compelled to so.

Question 28

Q

PRIVILEGE AGAINST SELF-INCRIMINATION

Duty of judge to explain

Answer

A

1) The law - S.132(3):
- imposes a duty on the trial judge to explain to him the purport of S.132(2) before compelling him to do so.
2) Application - Prabah Sithamby v PP:

When a witness hesitates to answer a question which may incriminate him, the approach of the judge is that:

determine whether that question relates to any matter relevant to the matter in issue.
if it is relevant, then it is necessary for the judge to compel the witness to answer under S.132(3) & explain the witness the purport of S.132(2).

Question 29

Q

PRIVILEGE AGAINST SELF-INCRIMINATION

Scope of protection against charges

Answer

A

1) Criminal proceedings only -
The AG of Hong Kong v Zauyah Wan Chik & Ors:

The protection given only to witness in criminal proceedings;
i. e. he will only be protected from arrest or prosecution or his answers being used in criminal proceedings brought against him.

2) Not for witness coming to tender documents or discovery - PMK Rajah v Worldwide Commodities Sdn Bhd & Ors:

S.132 only applies to witness testifying in court, being orally examined in three stages.
A person who merely produces a document is not a witness protected under S.132 as he may not be cross-examined unless he is called as a witness.
The protection is also not applicable to discovery in respect of an Anton Piller order.

Question 30

Q

LEGAL PROFESSIONAL COMMUNICATION PRIVILEGE

Overview

Answer

A

1) Rationale for privilege
2) Protection for solicitor - S.126
3) Protection to interpreter - S.127
4) Protection to legal advisers - S.129

Question 31

Q

LEGAL PROFESSIONAL COMMUNICATION PRIVILEGE

Rationale for privilege

Answer

A

1) R v Derby Magistrate Court, Ex Parte B:

a man must be able to consult his lawyer in confidence, otherwise he might hold back half the truth.
The client must be sure that what he tells his lawyer will never be revealed without his consent.
Legal professional privilege is a fundamental condition for administration of justice.

2) PP v Hj Kassim:

The rule is founded upon the principle that the conduct of legal business without professional assistance is impossible;
therefore, it is necessary to have such privilege to secure full & unreserved intercourse between the client & solicitor.

Question 32

Q

PROTECTION TO SOLICITOR

Overview

Answer

A

1) The law
2) Who is an A&S
3) Existence of prior legal relationship
4) Whether retention is needed
5) Scope of privilege - invoice
6) Scope of privilege - clergyman or doctors
7) Lifespan of privilege
8) Exceptions to privilege

Question 33

Q

PROTECTION TO SOLICITOR

The law

Question 34

Q

PROTECTION TO SOLICITOR

Who is an A&S

Answer

A

PP v DSAI (No. 3):

Privilege does not apply to a person who is not practising as an A&S, although legally qualified.
By virtue of S.127, the privilege is extended to interpreters and the clerks or servants of advocates.
This includes solicitors who are consulted by another on behalf of his client.

Question 35

Q

PROTECTION TO SOLICITOR

Existence of prior legal relationship

Answer

A

Chua Su Yin & Co v Ng Sung Yee:

There must exist a professional relationship before the privilege can arise

Question 36

Q

PROTECTION TO SOLICITOR

Whether retention is needed

Answer

A

1) General - Minter v Priest:
- the privilege does not depend on the solicitor being retained but rather on whether he has been consulted in his professional capacity so that the communications are referable to their relationship as solicitor and client.
2) Conditions to fulfil - Murugan Arumugam v PP (FC, 2017):

Conditions to fulfil:

(a) anak guam telah memohon untuk mendapatkan nasihat guaman daripada peguam bela berkenaan;
(b) nasihat guaman yang dipohon dan komunikasi antara mereka diberikan dalam kapasiti profesional beliau sebagai peguam;
(c) anak guam membuat komunikasi berkenaan kepada peguam untuk memohon dan mendapatkan nasihat guaman;
(d) anak guam membuat komunikasi berkenaan secara rahsia (in confidence);
(e) komunikasi berkenaan dilindungi sepenuhnya, dan berterusan melainkan perlindungan itu diketepikan (waived) oleh anak guam.
i.e. Asas hubungan di antara peguam cara dengan anak guamnya yang dilindungi di bawah S.126 adalah hubungan di mana peguam cara tersebut telah dengan jelas dilantik oleh anak guam tersebut.

Question 37

Q

PROTECTION TO SOLICITOR

Scope of privilege - invoice issued by lawyer

Answer

A

Ernest Cheong Yong Yin v Kamariyah Hamdan:

when a lawyer submits bill to his client, he does so as a supplier of a service;
it is therefore a relationship between debtor & creditor.
the amount owing submitted is different from the service itself.
Therefore, the invoice does not merit the protection conferred under S.126.

Question 38

Q

PROTECTION TO SOLICITOR

Scope of privilege - doctors or clergyman

Answer

A

1) PP v Haji Kassim:
- this privilege does not protect professional disclosures made to clergyman or doctors.
2) PP v DSAI (No. 3):
- Even though it was argued that communication between a doctor and a patient is privileged and it would also involve a breach of the code of conduct issued by the Malaysian Medical Council, there is no privilege under the law for a doctor from disclosing what transpired between him and his patient.

Question 39

Q

PROTECTION TO SOLICITOR

Lifespan of privilege

Answer

A

1) The law:
- Explanation to S.126
2) Application - Tan Thian Wah v Tan Tian Tok:
- The obligation under S.126 continues after the employment has ceased (Explanation to s. 126 EA 1950) and even after the death of the client.

Question 40

Q

EXCEPTIONS TO LEGAL PROFESSIONAL PRIVILEGE

Overview

Answer

A

1) The law
2) Scope of waiver
3) Implied waiver
4) Scope of furtherance of illegal purpose

Question 41

Q

EXCEPTIONS TO LEGAL PROFESSIONAL PRIVILEGE

The law

Answer

A

1) S.126:

Client’s express consent, i.e. express waiver; or
Communication made in furtherance of illegal purpose; or
Commission of crime or fraudulent act.

2) S.128:
- When the party calls the A&S in a proceeding & questions him on the matters which otherwise would be privilege.

Question 42

Q

EXCEPTIONS TO LEGAL PROFESSIONAL PRIVILEGE

Scope of waiver

Answer

A

Dato’ Au Ba Chi v Koh Keng Kheng:

The privilege under s. 126 is that of the client and not of the advocate.
The client may waive the privilege either expressly as provided under s. 126 or under the second part of s. 128 by calling the advocate as a witness and questioning him on the matter covered by the privilege.

Question 43

Q

EXCEPTIONS TO LEGAL PROFESSIONAL PRIVILEGE

Implied waiver

Answer

A

Dato’ Anthony See Teow Guan v See Teow Chuan & Anor:

Federal Court upheld the common law maxim that “once privileged, always privileged”.
The court held that the client could waive the privilege but the waiver must be made with express consent and as such Malaysian law does not recognise the common law waiver by implication or by imputation.

Question 44

Q

EXCEPTIONS TO LEGAL PROFESSIONAL PRIVILEGE

Scope of furtherance of illegal purpose

Answer

A

1) Re Detention of Leonard Teoh:

Under the proviso to s. 126 (1) EA, the privilege is not applicable if:
the communication was made in furtherance of an illegal purpose;
it is a fact observed by the advocate in the course of his employment as showing any crime or fraud has been made since the commencement of his employment.

2) Gideon Tan v Tey Por Yee:

If a person consults a solicitor in furtherance of a criminal purpose then, whether or not the solicitor knowingly assists in the furtherance of such purpose, the communications between the client and the solicitor do not attract legal professional privilege.
The principle extends to fraud or other equivalent underhand conduct which is in breach of a duty of good faith or contrary to public policy or the interest of justice.

3) recent - Celcom (Malaysia) Bhd &Ors v Tan Sri Dato’ Tajuddin Ramly (HC, 2020)
- Legally privileged communications between an advocate and solicitor and a client are not admissible as evidence in court where there is no proof that such communication was made in furtherance of any illegal purpose or that it involved commission of any crime or fraud.

Question 45

Q

PROTECTION TO INTERPRETER

The law & scope

Answer

A

1) The law:
- S.127
2) PP v DSAI (No. 3):

By virtue of S.127, the privilege is extended to interpreters and the clerks or servants of advocates.
This includes solicitors who are consulted by another on behalf of his client.

Question 46

Q

PROTECTION TO LEGAL ADVISERS

The law

Question 47

Q

LITIGATION PRIVILEGE

Overview

Answer

A

1) Scope of litigation privilege
2) When does LP apply - purpose
3) When does LP apply - time
4) When does LP apply - contract
5) Exceptions to LP

Question 48

Q

LITIGATION PRIVILEGE

Scope of LP

Answer

A

Waugh v British Railway Board:

Including information obtained by A&S from third parties for the purpose of litigation.
Protection is based on common law.
Example includes reports from doctor given to the solicitor.

Question 49

Q

LITIGATION PRIVILEGE

When does LP apply - purpose

Answer

A

Dr. Prita Singh v Yap Hong Choon:

dominant purpose is for pending or contemplated litigation.

Question 50

Q

LITIGATION PRIVILEGE

When does LP apply - time

Answer

A

Syarikat Chin Seng Supermarket v United Continental Insurance Sdn Bhd:

the document or information must be obtained AFTER the litigation is contemplated.

Question 51

Q

LITIGATION PRIVILEGE

When does LP apply - contract

Answer

A

Govt. State of Selangor v Central Lorry Service & Construction:

the privilege does not apply to contract & documents must be tendered if the central issue is regarding the contract itself.

Question 52

Q

LITIGATION PRIVILEGE

Exceptions to LP

Answer

A

1) S.126

2) S.128

Question 53

Q

COMMUNICATIONS OF THE AFFAIRS OF THE STATE

Overview

Answer

A

1) The law & scope
2) Rationale for privilege
3) Definition of affairs of state
4) Procedures
5) Applicability on OSA 1972

Question 54

Q

COMMUNICATIONS OF THE AFFAIRS OF THE STATE

The law & scope

Question 55

Q

COMMUNICATIONS OF THE AFFAIRS OF THE STATE

Rationale for privilege

Answer

A

State of Uttar Pradesh v Raj Narain:

Public interest demands that evidence need to be withheld & the courts would have the fullest possible access to all relevant materials.
When public interest outweighs the latter, the evidence cannot be admitted.

Question 56

Q

COMMUNICATIONS OF THE AFFAIRS OF THE STATE

Definition of affairs of state

Answer

A

BA Rao v Sapuran Kaur:

No definite definition of “affairs of the state”;
The court has the power to call for and examine the “official record” in issue to determine whether it relates to “affairs of state” before the privilege under s. 123 can be relied on.
Generally, cabinet papers, documents relating to the security of the state and high level government departmental minutes would amount to official records relating to affairs of the State.

Question 57

Q

COMMUNICATIONS OF THE AFFAIRS OF THE STATE

Procedures

Answer

A

BA Rao v Sapuran Kaur:

The court calls for and examines the “official record” in issue;
The court determines whether it relates to “affairs of state” before the privilege under S.123 can be relied on.

Question 58

Q

COMMUNICATIONS OF THE AFFAIRS OF THE STATE

Applicability on OSA 1972

Answer

A

1) Takong Tabari v Govt of Sarawak:
- the fact that the document was classified under s. 16A of the Official Secrets Act 1972 (“OSA”) was not conclusive that it related to the affairs of the state.
2) cf. PP v Datuk Haji Sahar Arpan:
- it was held that all documents under OSA 1972 are unpublished official records relating to the affairs of the state and therefore privileged under s. 123 EA.

Question 59

Q

CONDUCT OF A JUDGE

The law & rationale

Answer

A

1) The law:
- S.121
2) Rationale - Pavone v PP:

It would cause great inconvenience & embarrassment if Magistrates or Presidents are withdrawn from their own court to answer questions as to their own conduct.
Only in exceptional circumstances that a special order will be made under the section & that too only if it appears essential to just decision of the case.

Question 60

Q

CREDITWORTHINESS OF A WITNESS

Overview

Answer

A

1) General rule
2) Corroboration
3) Corroborative evidence
4) Corroboration as a matter of law
5) Corroboration as a matter practice & prudence - sworn evidence of a child witness
6) Corroboration as a matter of practice & prudence - sexual complainant
7) Corroboration as a matter of practice & prudence - accomplices
8) Corroboration as a matter of practice & prudence - witness in corruption cases
9) Corroboration as a matter of practice & prudence - agent provocateur
10) Corroboration as a matter of practice & prudence - co-accused

Question 61

Q

CREDITWORTHINESS OF A WITNESS

general rule & scope

Answer

A

1) general rule:
- S.134
2) Scope of S.134 - Jamaluddin bin Md Kassim:

No particular number of witnesses shall in any case be required for the proof of any fact as evidence has to be weighed and not counted.
It is the sufficiency of the evidence that matters;
Evidence for proof of facts in a trial depends on witnesses and their credibility.

Question 62

Q

CORROBORATION

Overview

Answer

A

1) General principles

2) What is corroboration

Question 63

Q

CORROBORATION

General principles

Answer

A

Vadhivelu Thevar v State of Madras:

GR: 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 incredible witnesses;
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.
e.g. child witness, accomplices.

Question 64

Q

CORROBORATION

What is corroboration

Answer

A

PP v Lim Kiang Chai:

Ref. DPP v Hester:
The word ‘corroboration’ means ‘confirmation’ or ‘support’
Ref. DPP v Kilbourne:
it means an evidence tending to confirm other evidence.

Answer 62

A

1) Conditions for corroborative evidence

2) Examples of corroborative evidence

Answer 63

A

1) Independent testimony
2) Connect the accused with the crime
3) Need not be direct evidence
4) Recent application

Answer 64

A

R v Baskerville:

Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime.
i.e. 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.

Answer 65

A

Normezam Appandy bin Abu Hassan (No. 2):

To qualify as corroboration, the evidence must satisfy two conditions:

It must come from independent sources; and
It must connect or tend to connect the accused with the crime in question.

Answer 66

A

Attan bin Abdul Ghani:

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.
But corroboration must be in material particulars although it is not necessary that the whole prosecution story or all material particulars should be corroborated.

Answer 67

A

Farose Tamure Mohamad Khan v PP (FC, 2016):

Ref. Yap Ee Kong v PP, per Raja Azlan Shah (1980)

1) CONFIRMATION:
- There should be some independent confirmation tending to connect the accused with the offence although it is not necessary that there should be independent confirmation of every material circumstance;
2) CONNECT:
- The independent evidence must reasonably connect or tend to connect the accused with it by confirming in some material particulars the testimony of the accomplice; and
3) INDEPENDENT:
- The corroboration must come from independent sources, thus bringing out the rule that ordinarily the testimony of an accomplice would not be sufficient to corroborate that of another.

Answer 68

A

1) Distress condition
2) Identification evidence
3) Evidence of conduct
4) Forensic evidence
5) Evidence of former consistent statement
6) Medical evidence for offence of rape
7) Application of corroboration principles on cases involving offence of rape

Answer 69

A

R v Redpath applied in Liew Kim Yong v PP;

The distress condition of victims in sexual offences may amount to corroboration;
However, judges have cautioned against the danger of relying on such evidence as such condition might result from other causes unrelated to the alleged offence.

Answer 70

A

Jaafar Ali v PP:

The quality of identification evidence must be assessed & court must ensure it has been corroborated.
Where the identity of the suspect is disputed, the identification evidence such as the evidence of a test identification parade, photo fit or pre-trial description of the suspect by the identification witness may amount to corroboration.

Answer 71

A

Dowse v AG, Federation of Malaya:

The conduct of the accused towards the person whom he was accused of committing adultery amounted to corroboration of the allegation.
It strongly suggests that he had a guilty conscience unless he can offer explanation of his conduct.

Answer 72

A

1) Principles - Rusman Sulaiman v PP:
- It is now accepted by courts that DNA profile developed from bodily fluid, tissues, semen, saliva etc obtained from the crime scene may be established to connect an accused person to the crime.
2) Example - Surendran K. Ayappan v PP:

The evidence of medical practitioners who attended to the victim constituted corroboration of the testimony of victim.
This forensic evidence arose in the form of a DNA analysis conducted.
Corroboration was also forthcoming from evidence which confirmed from the DNA samples that the victim and the accused were the mother and father respectively of the aborted foetus.

Answer 73

A

1) The law:
- S.157
2) Admissibility - Lim Guan Eng v PP:

Under S.157, a former statement made by a witness is admissible in order to corroborate his testimony.
The weight of such statement depends on the facts of a particular case.

3) “at or about the time” - PP v Mohammad Terang bin Amit:

“at or about time” is not to be limited to in terms of hours or days;
it means “first reasonable opportunity” or “as speedily as could be reasonably expected”.

4) Weight to be attached - Mohamed Ali v PP:

these statements have very little weight attached.
The value of such statement as corroboration may be infinitesimal;
However, it may be capable of being cross-checked for truthfulness against any other relevant evidence.

5) Weight to be attached - Liew Wah Ming v PP:
- Weight or value of such a statement as corroboration must always be a question of fact, and no hard-and-fast rule, capable of mechanical application can be laid down.

Answer 74

A

1) Whether it is of some value - James v R:

incapable of affording corroboration of her evidence of the rape because it did not confirm any more than an act of sexual intercourse;
It did not offer any confirmation of the identity of the man involved or of the alleged lack of consent.

2) Statutory rape - cf. Syed Abu Tahir a/l Mohamad Esmail v PP:

On a charge of rape where consent is irrelevant such as statutory rape;
Medical evidence showing any fresh tear in the hymen is sufficient to corroborate the evidence of the victim on the factum of rape.

Answer 75

A

Aziz bin Muhd Din v PP:

1) On evidence of opportunity:

Evidence of mere opportunity, without more, cannot amount to corroboration.
Evidence of opportunity must be supplemented by proof of circumstances of such a nature as to lead to the inference that it was probable that advantage would be taken of the opportunity.
Example of supplementary evidence: admissible medical evidence.

2) Evidence of sexual intercourse:

Ref. James v R & Syed Abu Tahir a/l Mohamad Esmail v PP.
OTF, since the testimony of the expert are in contradiction with each other, it is held that it cannot amount to corroboration.

Answer 76

A

1) When required: The law & scope
2) Mutual corroboration
3) Effect of conviction with uncorroborated evidence of an unsworn child witness

Answer 77

A

1) The law:
- S.133A
2) The scope - Sidek bin Ludan v PP:

the trial Court is obligated by way of a preliminary examination to ascertain the child’s capacity to understand and give rational answers.
It is insufficient to merely administer warning;
Proviso to s.133A means that a conviction cannot stand on the uncorroborated evidence of an unsworn child witness.

Answer 78

A

1) Director of Public Prosecutions v Hester:
- Mutual corroboration of children giving unsworn evidence is not allowed.
2) PP v Mohammad Terang bin Amit:

an accused person not to be convicted of an unsworn evidence UNLESS it is corroborated by some other material evidence in support that implicates the accused;
the corroborative evidence must not be in the form of mutual corroboration.
if there are two or more children giving unsworn evidence to the same effect, still there can be NO conviction as it amounts to mutual corroboration.
There must be some other material evidence corroborating the testimony.

Answer 79

A

1) The rule - PP v Mohammad Terang bin Amit:
- an accused person not to be convicted of an unsworn evidence UNLESS it is corroborated by some other material evidence in support that implicates the accused.

2) Effect - Mohd Nahar Abu Bakar v PP:
Ref. PP v Richard Devadasan Sabariah:

A conviction cannot stand on the uncorroborated evidence of an unsworn child.

Answer 80

A

1) Whether can be convicted

2) Need for corroboration warning

Answer 81

A

Sidek bin Ludan v PP:

Corroboration is required only as a matter of practice and prudence for sworn child witnesses;
An accused can be convicted on the uncorroborated sworn evidence of a child witness so long that the corroboration warning is administered by the judge.

Answer 82

A

1) Whether needs to be expressed - Ng Yau Thai v PP:

The corroboration warning does not involve some legalistic ritual to be automatically recited by the trial magistrate, or that some particular form of words or incantation has to 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.

2) Whether needs to be in particular form - Chiu Nang Hong v PP:

No particular form of words is necessary for the purpose of administering warning;
What is necessary is that the Judge’s mind upon the matter should be clearly revealed.

Answer 83

A

1) Scope
2) Need for corroboration warning
3) Conviction based on uncorroborated evidence

Answer 84

A

Din v PP:

Evidence of complainants in sexual cases is required to be corroborated as a matter of practice and prudence.

Answer 85

A

Chiu Nang Hong & Aziz bin Muhammad Din:

Although the requirement of corroboration is discretionary, but if it is dispensed with, a corroboration warning is required as a matter of law.

Answer 86

A

1) DSAI v PP (FC, 2015):

While there is no rule of law that in sexual offences the evidence of the complainant must be corroborated, nevertheless as a matter of common sense to be unsafe to convict in such cases;
Conviction is safe only if the evidence of the complainant is unusually convincing or there is some corroboration of the complainant’s story.

2) cf. Zakwan Zainuddin & Ors v PP (HC, 2019):

There is no rule of law that in sexual offences the evidence of the complainant must be corroborated.
If the evidence of the victim is unusually convincing, it would be safe to convict.
On the facts, HC held that “it would be illogical to expect corroborative evidence of the ordeal the victim has suffered throughout the wee hours of the morning on 4.3.2017, as it was her presence alone, confined, with the six men and nobody else”.

Answer 87

A

1) Who are accomplices
2) Accomplices vs accessory
3) Evidence of an accessory
4) Whether corroboration is required
5) Mutual corroboration
5) Rationale for the need of corroboration
6) Conviction based on uncorroborated evidence

Answer 88

A

1) Davies v DPP:

include all persons who participate/procure/aid/abet in the offence, as principals or accessories;
e.g. receivers of stolen goods in the case of theft, or persons involved in other offences in relation to the offence charged.

2) Harcharan Singh v PP:

An accomplice is a person who has participated in the commission of an offence; he is a participes criminis.
To determine whether a person is an accomplice, the particular facts and circumstances of each case would play a pivotal part in resolving the issue.

*NOTE: The test appears to be whether the witness has played an active role or not.

Answer 89

A

Harcharan Singh v PP, referring to:

1) Distinction between accomplice vs accessory - * Sarkar on Evidence:

Two classes of people have been recognised:
– Persons who are principals (i.e, directly or indirectly concerned in the offence);
– Abettors or instigators (i.e, privy to the offence).
“Accomplice” includes principals in the first and second degrees as also abettors.
An “accessory after the fact” is one who knowing a felony to have been committed, receives, relieves, comforts, assists, harbours or maintains a felon.
An accessory after the fact being not concerned in the original offence for which the accused is tried may not in the strict sense come within ‘accomplice’;
All accessories after the fact are not of the same degree of criminality, but it depends on the particular facts of each case.

2) Prior knowledge on commission of offence - Kuan Tedd Fatt:

An accessory after the fact cannot be an accomplice as he is not concerned in the commission of the original offence.
Not all & every witness who was present at the time of the commission of the offence is an accomplice.
If the witness has no prior knowledge that the offender had intended to commit the offence charged, he is not an accomplice.

Answer 90

A

Harcharan Singh v PP, referring to:

1) Sarkar on Evidence:

The presumption of untrustworthiness equally attaches to evidence of an accessory;
Evidence of an accessory is on the same principle as that of an accomplice.

Answer 91

A

PP v DSAI (No. 3):

Corroboration is required only as a matter of practice and prudence.
Whether corroboration should be insisted upon or dispensed with will depend on the discretion of the judge.
In determining whether the discretion should be exercised, the judge may consider factors such as the degree of complicity and role played by the accomplice.

Answer 92

A

Harcharan Singh v PP:

Where he has played an active role, his evidence must be corroborated.
On the other hand if his role has been passive, his evidence may be accepted with the usual corroboration warning.
On the facts, FC found that the witness has played an active role in disposing the deceased’s body & it is clear that he was an active accessory after the fact.
Evidence of an active accessory is the same as to that of an accomplice.
There is a need to treat his evidence with caution & corroboration may be required.

Answer 93

A

PP v Normezam Apandy (No. 2):

The witness otf is not an accessory after the fact, a participes criminis or an accomplice.
His role is distinguishable from the active role played by the witness in Harcharan Singh v PP.
court will therefore deal with his evidence as an ordinary witness, requiring no corroboration.

Answer 94

A

Bhuboni Sahu v The King:

Mutual corroboration of accomplices is not permitted.

Answer 95

A

1) Rationale - Tan See Boon v PP:
- accomplices have a vested interest in diverting blame from themselves to the persons against whom they testify.
2) Example - Harcharan Singh & Anor v PP:

Where a witness plays such an active role his evidence is no better than that of an accomplice.
The need to treat his evidence with caution was made stronger by the fact that he was not charged as he had agreed to become a witness for the prosecution.

Answer 96

A

PP v Lim Kiang Chai:

an accused person may be convicted solely on the evidence of an accomplice provided that:
he is found to be a credible witness; and
the court has administer corroboration warning.

Answer 97

A

Puganeswaran Ganesan & Ors v PP (FC, 2020):

An accused person may be convicted even on the uncorroborated evidence of an accomplice;
It is totally irrelevant that the accomplice is not charged together with the others who committed the same crime.
The object of corroboration is to satisfy the court that the witnesses are telling the truth and that it is reasonably safe to act on their evidence.
It is not necessary that the corroboration should be of the actual commission of the crime;
It would be enough corroboration if there is independent evidence of relevant circumstances connecting the accused with the crime.

Answer 98

A

1) Role of participant
2) General rule & application
3) S.44 ACA
4) S.52 MACC Act
5) Recent application

Answer 99

A

Ng Kok Lian v PP:

An accomplice witness in corruption cases who received the gratification requires mens rea as much as the principal offender does.
if a person received gratification innocently or without any corrupt motive, although it is given to him, the gift does not become an illegal gratification.
There is no automatic finding that a participant in corruption cases is an accomplice;
The court must study the evidence & make necessary finding as to whether the witness received the gratification innocently or otherwise.

Answer 100

A

PP v Dato’ Azman Mahalan:

Accused was alleged to have given bribe to PW1;
Based on the conduct of PW1 in reporting to the anti-corruption agency & informing PW6, he could not be labelled an accomplice;
Therefore, there is no requirement that his evidence to be corroborated.

Answer 101

A

Mohd Khir Toyo v PP:

Ref. S44(1)(a)(ii) of the ACA 1997: no giver could be ‘regarded as an accomplice’.
Ref. S.44(2) of the ACA 1997: conviction on the uncorroborated evidence of any accomplice ‘shall not be set aside merely because the court which tried the case has failed to refer in the grounds of its judgment to the need to warn itself against the danger of convicting on such evidence’.
OTF, the submission by the defence that the witness in question is an accomplice & thus his evidence requires corroboration failed.

Answer 102

A

In summary:

no witness shall be regarded as an accomplice if he has accepted / given/ having knowledge of such offence.
no agent provocateur shall be presumed unworthy of credit by his attempt to abet;
conviction based on uncorroborated evidence of an accomplice / AP shall not be illegal;
no conviction shall be set aside by failure to administer corroboration warning.

Answer 103

A

Shamsudin Abas & Anor v PP:

1) Trap witness vs accomplice:

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 a trap witness.
he is an accomplice if he extends no aid to the prosecution until after the offence has been committed.

2) Facts & held:

it would be fairly clear that SP3 was not a trap witness but an accomplice, as he was not aware that SP2 was acting with the MACC to entrap the Appellants and he was not aware that the RM500 that was handed by SP3 to him was trap monies that originated from SP4 as the agent of MACC.
therefore by virtue of S.52, the conviction of the appellants is not illegal by reason of uncorroborative evidence of SP3.
Even if corroboration is required, the corroboration came in the form of the marked trap monies that was found in the Ford.
The trap monies served as the corroborative evidence that tied the First Appellant to having received the RM500 from SP3.

Answer 104

A

1) Who is an AP
2) Informer vs AP
3) Conviction based on uncorroborated evidence of AP
4) Presumption of creditworthiness of AP
5) Rebutting presumption of creditworthiness
6) Whether evidence of AP can be excluded for being illegally obtained
7) Application of the principles regarding AP

Answer 105

A

1) PP v Rosli bin Radikin:
- An agent provocateur is a person who openly and actively instigates and entices another to commit a criminal offence.
2) Mohd Za’ba bin Abu Talib & Anor v PP (CA, 2013)

Ref. Wan Mohd Azman Hassan v. PP & Hari Bhadur Ghale v. PP:

The one who provokes or suggests the commission of an offence to another person hoping that the latter will go along with his suggestion so that the other person may be convicted of the offence the agent provocateur suggested.

Ref. Dictionary of Law by LB Curzon:

The one who enticed another commit an express breach of the law which he would not otherwise have committed and then proceeds to inform against him in respect of such offence.

Answer 106

A

Munusamy Vengadasalam v PP:

whether a person is an informer or has become an active agent provocateur would depend on the facts of each case.
In this case all the informer did was merely to accompany and introduce a police officer to the accused person.

Answer 107

A

Hari Bahadur Ghale v PP:

Ref. Teja Singh & Anor v PP:
the evidence of an agent provocateur is not that of an accomplice and thus does not require corroboration.
Held: an accused can be convicted on the uncorroborated evidence of an agent provocateur.

Answer 108

A

1) S.40A(1) DDA:
- no agent provocateur shall be presumed to be unworthy of credit by reason only of his having attempted to abet or abetted the commission of an offence by any person under this Act if the attempt to abet or abetment was for the sole purpose of securing evidence against such person.
2) S.52(1)(b) MACCA:

(b) no agent provocateur, whether he is an officer of the Commission or not, shall be presumed to be unworthy of credit by reason only of his having attempted to commit, or to abet, having abetted or having been engaged in a criminal conspiracy to commit, such offence if the main purpose of such attempt, abetment or engagement was to secure evidence against such person; and
(c) any statement, whether oral or written, made to an agent provocateur by such person shall be admissible as evidence at his trial.

Answer 109

A

1) Whether rebuttable - Wan Mohd Azman Hassan v PP:
- although no agent provocateur shall be presumed to be unworthy of credit, such a presumption is still a rebuttable presumption.
2) Burden of rebutting - Namasiyam & Ors v PP:

the presumption under S.40A is rebuttable.
the burden is on the defence to adduce sufficient evidence for the court to conclude that the agent provocateur is unworthy of credit.

3) Whether rebuttable & burden of rebutting - PP v Han G Kong Juan & Ors:

This presumption of being a creditworthy witness is rebuttable.
It falls upon the defence then to adduce sufficient evidence for the court to conclude that the evidence of an agent provocateur is unworthy of credit.

Answer 110

A

Mohd Za’ba bin Abu Talib & Anor v PP:

Ref. Evidence Practice & Procedure:

Under s. 40A, the evidence of the agent provocateur cannot be excluded in the exercise of judicial discretion.
Evidence under S.40A does not become inadmissible merely because it had been improperly or unfairly obtained.

Answer 111

A

Mohd Za’ba bin Abu Talib & Anor v PP:

1) Who is an agent provocateur:

Ref. Wan Mohd Azman Hassan v. PP & Hari Bhadur Ghale v. PP.
Ref. Dictionary of Law by LB Curzon.

2) Informer vs AP:
- Ref. Munusamy Vengadasalam v. PP.

On the facts: the informer cannot be termed as an informer within the meaning of S.40 DDA and cannot claim any protection under the said section.
The informer’s role in this case is akin to that of Francis in Namasiyiam Doraisamy v. PP & Other Cases & he is an agent provocateur.

3) Whether presumption is rebuttable:
- Ref. PP v Han G Kong Juan & Ors.
4) Whether evidence obtained under S.40 can be excluded on the ground of being illegally obtained.

Ref. Evidence Practice & Procedure.
He may thus relate the full story of what happened in his negotiations with the drugs seller and any statements made by the latter to him shall be admissible in evidence.

Answer 112

A

PP v Yeoh Teck Chye:

1) Ref. Shanmugam v Public Prosecutor & Abu Bakar v Regina:
- it is a misdirection in law to require an accused person to corroborate his story.
2) Ref. R v Barnes:

where prisoners are tried jointly, and one of them gives evidence on his own behalf incriminating a co-prisoner, the prisoner who has given the incriminating evidence is not placed in the position of an accomplice;
the rule of practice with regard to the corroboration of an accomplice does not apply to co-accused, for that rule applies only to witnesses called for the prosecution.

3) Ref. Section 30 of the Evidence Act:

the court may take into account such incriminating evidence against a co-prisoner.
Co-accused is not the same as a witness who testify for the prosecution;
Therefore, it can be said that the corroboration warning & corroboration is required as a matter of practice & prudence.

OTF, FC held that the trial judge erred when he required corroboration of the co-accused’s evidence.

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Chapter 12 - Witness Flashcards

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