“Evaluate Razali Silah v PP [2019] 1 LNS 508 and the principle of corroboration in child

witness”

Introduction

Corroboration means to support or enhance the believability of a fact or assertion by

the presentation of additional information that confirms the truthfulness of the facts.As such,
according to $.134 EA, there is no particular number of witnesses shall in any case be required
for the proof of any fact.

Nature of Corroboration

The court in DPP v Hester [1973] AC 296, held that corroboration simply means
‘confirmation’. In R v Baskerville [1916] 2 KB 658, the court elucidated that evidence must
be independent. It must implicate the accused. It must show that crime was committed. It must
show that the crime was committed by the accused.

Minor’s Corroboration under the Evidence Act

It is settled that a minor is able to give testimony. S.2 of the Evidence of Child
Witness Act 2007 (‘ECWA’) defined “child witness” means a person under the age of 16
years who is called or proposed to be called to give evidence in any proceedings but does not
include an accused ora child charged with anyoffence.

S.118 EA stated that all persons shall be competent to testify unless the court
considers that they are prevented from understanding the questions put to them or from giving
rational answers to those questions by tender years, extreme old age, disease, whether of
body or mind, or any other cause of the same kind. Explanation to S.118 EA stated that a
mentally disordered person or a lunatic is not incompetentto testify unless he is prevented by
his condition from understanding the questions put to him and giving rational answers to them.
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In Sidek bin Ludan v PP [1995] 3 MLJ 178, the Court has to ascertain the intellectual
capacity and understanding of the witness to give a rational account of what he has seen or
heard or done on a particular occasion. In determining the question of competency,the court
acting under s 118 of the Act, is entitled to test the capacity of a witness by putting proper
questions. 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.
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S.133A EA requires that any child of tender years called as a witness does notin the
Opinion of the court understand the nature of an oath, his evidence may bereceived, though
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not given upon oath, if, in the opinion of the court, he is possessed ofsufficient intelligence to

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 justify the reception of the evidence, and understands the duty of speaking the truth; and his
evidence, though not given on oath, but otherwise taken and reduced into writing.

It provides that the child may give sworn evidence in the case when the child
understands the nature of the oath. The corroboration is required as practice and prudence.
The court has the discretion to convict the accused on uncorroborated evidence. This is
reflected in PP v Mohd Noor bin Abdullah [1992] 3 CLJ Rep 304. In Sidek bin Ludan v PP,
the court held that in the case of sworn child witness, the old rule of prudence applies. There
is aneed to give an exhaustive warning on the dangers of convicting on such uncorroborated
evidence.

However, Proviso to S.133A EA stated that where evidence admitted by virtue ofthis
section is given on behalf of the prosecution, the accused shall not be liable to be convicted
of the offence unless that evidence is corroborated by some other material evidence in support
thereof implicating him. This shows the need of corroboration.

In PP v Chan Wai Heng [2008] 5 MLJ 798, the accused was charged under s.377C
of the Penal Code for an offence of voluntarily committing carnal intercourse against the order
of nature. The victim was 7 years old at the time of the incident and 9 years old at the time he
gave evidence. The Sessions Court convicted the accused. The High Court set aside the
conviction as S.133 A had not been adhered to. The Court of Appeal held that Sessions Court
judge had address his mind on the requirements of S.133A and found corroboration of the
victim’s evidence from the combined medical evidence which related to the injuries at the
victim’s anus.

In Sidek bin Ludan v PP, the court held that in the case of unsworn child witness,
S.133A applies.

Case Facts of Razali Silah

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In Razali Silah v PP [2019] 1 LNS 508, the victim was 13 years old. One day, the
stepfather (accused) held her breast and fondled it. The victim and the mother reported the
incident. The accused was charged under S.14(a) of the SOACA. The court held that Needless
to say with the coming into force of the law relating to sexual offences involving a child, under
which the accused was charged, corroboration of SP2's evidence is not necessary. This can
be gleaned from S.18 of SOACA, which renders that the court may convict an accused of an
offence under the same Act on the basis of the uncorroborated evidence of a child, given upon
oath or otherwise. As such victim's testimony is paramount. 33yAt42JnkxG5z

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The Need of Corroboration under Sexual Offences Against Children Act (‘“SOACA’)

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 S.2(1) of the Sexual Offences Against Children Act (‘SOACA’) stated that the Act
Shall apply to a child who is under the age of 18 years and wherethis Act relates to any other
written law, to a child of such age as specified in such written law.

S.18 SOACA stated that notwithstanding anything contrary in any other written law, in
any proceedings against any person relating to any offence under this Act, or any offence
specified in the Schedule where the victim is a child, the court may convict such person of
such offence on the basis of the uncorroborated evidence of a child, given upon oath or
otherwise. The S.18 uses “may”. This showsthat the court has the discretion to insist that
corroboration is required.

The introduction of S.18 SOACA appearsto introduce an exception to the general rule
under S.133A EA. It sets aside the mandatory corroboration requirement as it allows the court
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to convict the accused even if the evidence is uncorroboated in cases of offences under
SOACA. However,it must be noted that S.18 SOACA only applies to sexual offences against
children. For other offences, S.133Astill applies.

In Razali Silah v PP, the court held that corroboration of the vitim’s evidence is not

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necessary as per S.18 SOACA. In Ahmad Hafizal Darusalam v PP [2019] 1 LNS 1172,it
was found that he understood the meaning of the oath and also understood the obligation to
speak the truth and the effect of the oath. The victim was thus a competent witness giving
sworn testimony and his testimony had been accepted. His evidence was strong and
admissible without supporting evidence and that the appellant could be convicted of the
charge under s.18 SOACA.

In PP v MuhammadShan Abdullah [2020] 1 LNS 2067, the victim was sexually

assaulted by her stepfather. The court referred to S.18 SOACA. In PP Iwn. Idris Mohamed
[2020] 1 LNS 1295,the court has also referred to S.18 SOACA. In Sulaiman Aswari lwn PP
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[2020] 1 LNS 1298,the court held referred to S.18 SOACA and held that the victim may give
evidence and her evidence may be uncorroborated. However,in all the cases above, there
are other evidences which showed that the accused had committed a sexual offence.
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Practice and Prudence

The practice and prudence states that corroboration is mandatory in sexual offences.
In Loo Chuan Huat v PP [1971] 2 ML) 167, the child evidence was not sworn but was
cautioned by the trial judge to speak the truth. But prudence requires that it should be
corroborated. Hence, it is called a rule of prudence which means that the evidence is not to
be given weight unless it is corroborated in material particulars

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 In Tham Kai Yau v PP [1977]1 MLJ 174, the court held that a formal warning that it
would be dangerous to convict on the uncorroborated evidence of a child of tender years is
not necessary in cases involving child evidence. It is sufficient if the judge adopts the prudent
course of advising the jury to pay particular attention to or to scrutinise with special care, the
evidence of young children and explains the tendencies of children to invent and distort.

In Lee Kwang Peng v PP [1997] 2 SLR(R) 569, the Singapore court held that where
the sole evidence against an accused person was that of a child witness, the court should
require corroboration unless the court was of the opinion that the child was a mature and
reliable witness.

In PP v Gurdial Singh Pretum Singh [2003] 1 CLJ 37, the High Court held that a
conviction cannot stand on the uncorroborated evidence of an unsworn child witness.

Opinion

At a first look, the introduction of S.18 SOACA is a good intention to overcome the
rampant sexual offences against children. However,the section is still strouded in uncertainty.
It is still uncertain that whether the judge has to warn himself of the risk of convicting an
accused without corroboration. It is also unclear on whether the judge should exercise his
discretion based on practice and prudenceby giving a warning. Furthermore, in Razali Silah’s
case, it shows that there are other evidence as well to corroborate the offence.

Therefore, | opine that it is the practice and prudence that the law still requires the
sexual offences against children to be corroborated. To convict the accused based on
uncorroborated evidence ofa child is untenable. The law in Malaysia has yet to come this far
to abandon the rules of corroboration of a child. Perhaps, the Parliament could make reference
to S.164 of the Australia Evidence Act 1955 which abolish the requirements of corroboration.
S.165A(1) of the Australian Evidence Act 1955 has also stated that the child evidence is
prohibited from giving a warning. S.165A(2) of the Australia Evidence Act 1955stated that
the court still has the discretion to warn in exceptional cases.

Conclusion

In conclusion, the statement in Razali Silah v PP may be correct in terms of statutory

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interpretation. However, Malaysia has not gone far enough to adopt the changes as practice
and prudence still requires corroboration in sexual offences.

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