DR JAL ZABDI MOHD Corroboration
YUSOFF Evidence - Child
FACULTY OF LAW Witness
Section 2 of Act A1732
(Amendment of section 118)
The Evidence Act 1950 [Act
56], which is referred to as the
"principal Act" in this Act, is
amended in section 118 by
EVIDENCE deleting the words "tender
(AMENDMENT) years,".
ACT 2024 ACT
Section 3 of Act A1732
A1732
(Deletion of section 133A)
The principal Act is amended
by deleting section 133A.
Gazetted Date: 1 November
2024
In Force from: Not Yet In
Force
The Unsworn The evidence of children is
Evidence of rightly treated with some
suspicion.
Children and The suspicion, however, has
Mutual been based for the most part
Corroboration on the untested assumptions
Eric Gertner that "immaturity, possible
Osgoode Hall errors in perception, the
comparative ease with which
Law Journal their impressions may be
Volume 16, magnified or distorted or
Number 2 influenced by what may be
(October said to them render the
evidence of children more
1978) suspect than the evidence of
adults.
s133A Evidence of child of tender years
Where, in any proceedings against any person for any offence, any child of
tender years called as a witness does not in the opinion of the court
understand the nature of an oath, his evidence may be received, though
not given upon oath, if, in the opinion of the court, he is possessed of
sufficient intelligence to 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 in accordance
with section 269 of the Criminal Procedure Code [Act 593] shall be deemed
to be a deposition within the meaning of that section:
Provided that, where evidence admitted by virtue of this 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.
Sidek bin Ludan v Public
Prosecutor [1995] 1 LNS 219
Court :
The amendment (s 133A) 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. Where in the case of an unsworn child witness, s 133A of the
Act applies.
(Amendment in 1971)
Principle
After the amendment to Section 133A, there are two types of testimony by children:
a) Testimony under oath – Can lead to a conviction without corroboration, but a warning
must be given.
b) Testimony without oath – Requires corroboration for a conviction.
Yusaini bin Mat Adam v Public
Prosecutor [1999] 3 MLJ 582
Section 133A which was introduced in the Evidence Act
1950 in 1971 (see PU(A)261/71) is the equivalent of s. 38
of the English Children & Young Persons Act 1933
(repealed since 1991).
In England, prior to 1933, children could testify in criminal
proceedings only if they were found competent to swear
the same oath as adult witnesses. Section 38 of the
English Act first introduced the principle of unsworn
evidence in criminal cases.
The Effect of Section
133A
For the testimony of a child given without being sworn, a
conviction against the accused can only be made if there
is corroborative material evidence.
Giving a warning is insufficient in this context. (Aziz
Muhamad Din v PP [1997] 1 CLJ SUPP 523)
Failure to obtain corroborative evidence in such
circumstances may result in the conviction being set
aside.
Public Prosecutor v Chan
Wai Heng [2008] 5 MLJ 798
Section 133A refers to a situation where a child of tender years is
called as a witness and does not understand the nature of an
oath. In such a situation his evidence may still be received
though not given upon oath if in the opinion of the court he
possesses sufficient understanding to justify the reception of the
evidence, and the child understands the duty of speaking the
truth.
[16] The first part of s 133A therefore governs the admissibility
of the evidence of the child though not given under oath. The
proviso deals with the way in which the evidence once admitted
is to be treated, that is, where the evidence admitted as such is
given on behalf of the prosecution, the proviso requires that the
evidence is to be corroborated by some other material evidence
in support thereof in order to implicate the accused.
Andrews and Hirst in
Criminal Evidence at 256
It is increasingly became a cause for concern, in cases involving sexual and/ or
violent crimes against children, that too many prosecutions were failing, even in
cases of fairly clear guilt. There were at least four identifiable reasons for this. In
some cases, the competence rules disqualified the children concerned from
Giving evidence at all, namely where they failed to pass courtroom
"examinations" requiring proven understanding of the concept of truthfulness. If
the test was passed, the child's ordeal as a witness was still made far more
difficult than it should have been. Children were usually propelled unprepared
and unprotected into the intimidating atmosphere of a formal criminal trial,
where they often failed to come up to proof. In many cases their evidence had to
be corroborated by other evidence before convictions could be based upon it, or
was subjected to a corroboration warning, under which the jury would be told
that it would be dangerous for them to rely on that evidence alone.
Finally, the similar fact rule as construed in cases such as R v. Inder [1977] of Cr.
App. R 143, worked against the victims of serial child sex abuse, preventing the
various victims of such offenders from corroborating each other's stories in all
but the most strikingly similar of cases.
Sexual Offences Against
Children Act 2017
Section 17 Presumption as to Section 18 Evidence of child
capacity of a child witness witness
Notwithstanding anything Notwithstanding anything
contrary in any other contrary in any other written
written law, in any law, in any proceedings
proceedings against any against any person relating to
person relating to any any offence under this Act, or
offence under this Act, or any offence specified in the
any offence specified in the Schedule where the victim is a
Schedule where the victim child, the court may convict
is a child, a child is such person of such offence on
presumed to be competent the basis of the
to give evidence unless the uncorroborated evidence of a
court thinks otherwise. child, given upon oath or
otherwise
SEXUAL OFFENCES
AGAINST CHILDREN
(AMENDMENT) ACT
2024 ACT A1734
PART VI CAPACITY AND
2 Deletion of Part VI EVIDENCE OF CHILD
The Sexual Offences against WITNESS
Children Act 2017 [Act 792],
which is referred to as the
"principal Act" in this Act, is 17 Presumption as to capacity
amended by deleting Part VI.
of a child witness
18 Evidence of child witness
Gazetted Date: 1 November
2024
In Force from: Not Yet In Force
Chao Chong v Public
Prosecutor [1960] MLJ 238
One reason why children's evidence is regarded with
suspicion is that there is always the danger that a
child may not fully understand the effect of taking
an oath.
Another reason, however, which in this country
possesses undiminished force is that 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.
Kesavan Sanderan
[1999] 1 CLJ 343
It is often said that children are prone to a fertile imagination. They may not
understand the nature of an oath. For these reasons, prudence requires that their
testimony be corroborated before being acted upon. But it is only a rule of
prudence, and not a hard and fast rule. Children these days, no longer brought up
on a reading diet of fairy tales, but of seeing motion images before their eyes on
television or in the cinema, are much less active in imagination and more adept in
describing what they perceive from their senses. Indeed, their childlike innocence
may enable them to describe an un-embellished truth as well as a truthful adult. It
would be wrong therefore to reject summarily a child's testimony whenever there is
no corroboration.
It would be an injustice to the child, whose faith in the system of justice
and even in himself may well be destroyed. The court must always
consider the whole of the surrounding circumstances. The court must not
simply dismiss his evidence but must go on to consider the evidence of
that child witness with utmost care. If the court finds no reason why the
child should not be believed, it may act upon his testimony even if there is
no corroboration, provided of course it has at all times kept in mind the
danger of acting on uncorroborated testimony alone.
Tajuddin Salleh v Public
Prosecutor [2008] 2 CLJ 745
Normally a child does not have the same temptation to take sides and
speak falsehood. But there is a danger in placing absolute reliance
upon the evidence of a child witness as it can easily be influenced by
adults who have interest in the case. Therefore the evidence of the
child witness is to be taken with great caution. Though a child may be
a competent witness, a closer scrutiny of its evidence is necessary
before the same is accepted by the court.
As a matter of strict law, the court can act on the uncorroborated
testimony of a single child witness. But it is a sound rule in practice
not to act on the uncorroborated evidence of a child. This is only a
rule of prudence and not of law. This was the position under s 118
but under s133A EA 1950 corroboration is needed as a matter of
law, as it is specifically stated that "unless that evidence is
corroborated by some other material evidence in support thereof
implicating him."
Yusaini Mat Adam v Public
Prosecutor [1999] 3 MLJ 582
It is disquieting to observe that the child might have
rehearsed the evidence she was to give in court or
coached to give the sworn evidence by her mother's sister,
SP2. During cross-examination the child witness said:
Saya ada bincang dengan mak cik tentang perkara ini.
Saya setuju apa saya cakap di mahkamah inilah mak cik
yang suruh … mak cik yang suruh saya buat. Mak cik dan
bapa tiri ada bergaduh …
The next day, during examination-in-chief, she changed
the story:
Semalam saya tak faham soalan. Tak betul makcik dan
pakcik suruh cakap begini di mahkamah.
Then there was this observation by the sessions court judge that
the girl sometimes cried when she was to relate what had
happened, sometimes she turned pale and sometimes she
refused to speak and that the court had to adjourn the
proceedings several times in order for her to clear her mind
before she testified. The judge also observed that she appeared
to be afraid of the deputy public prosecutor, the counsel for the
defence and the accused. She remarked, too, that at times when
the child was called in to be identified by witnesses who were
testifying she refused to enter the court and instead stood by the
doorway of the court and quickly moved away.
Another observation by the judge was that she refused to speak
in court unless the husband of her aunt was present and that at
the beginning the court allowed him to be in as the court thought
he was not involved as a witness.
EVIDENCE OF CHILD WITNESS
(AMENDMENT) ACT 2024 ACT
(A1731)
See for example
"PART IA
COMPETENCY OF CHILD WITNESS, EVIDENCE OF CHILD
WITNESS GIVEN UPON OATH OR OTHERWISE AND
UNCORROBORATED EVIDENCE OF CHILD WITNESS
Pemeriksaan Awal
Yusaini Mat Adam v Public
Prosecutor [1999] 3 MLJ 582
I have set out one aspect of the contradictory evidence of the child
and the observation of the Sessions Court judge on the girl to
show the girl who was 11 years old when she appeared in court to
give evidence was certainly of "tender years" and ought to have
been examined as to whether she had sufficient appreciation of the
solemnity of the occasion and the added responsibility of telling
the truth over the ordinary duty to tell the truth upon pain of
punishment for perjury under
s. 14 of the Oaths and Affirmation Act 1949. Only after the
Sessions Court Judge had satisfied herself on the above should the
child then have proceeded to take an oath or make an affirmation
to tell the truth under the Oaths and Affirmation Act 1949. (see eg,
the procedure adopted by the trial judge in Tham Kai Yau & Ors v.
PP [1977] 1 MLJ 174 at 175, left column, C). Otherwise the child's
evidence should have been taken and reduced in writing following
the procedure under 133A of the Evidence Act 1950.
On the failure of the Sessions Court judge to follow the procedure
Pemeriksaan Awal
Tajudin Saleh v PP/ PP v Tajudin
Saleh [2007]1 LNS 424
Under this section it is for the court to decide whether a child or anybody
is a competent witness or whether the witness has intellectual
competency. The competency or incompetency of a witness is usually
decided by the trial judge on a preliminary examination of the witness
called 'voire dire'.
In the case of a child witness, it should have that capacity to understand
the difference between truth and falsehood. This is tested by the judge
by putting simple questions like, 'what is your name?' 'Where do you
live?' 'What day of the week is today?' etc.
The object of putting questions on 'voire dire' before actual examination
of that witness is to ensure that the time of the court is not wasted, if it is
subsequently found that the child is not intelligent enough to give
evidence. If the child answers the questions satisfactorily, the judge will
certify that the child is a competent witness. (See Sidek bin Ludan v. PP
[1995] 1 LNS 219; [1995] 3 MLJ 178; Rameshwar Kalyan Singh v. State of
Rajasthan AIR [1952] S.C. 54).
Public Prosecutor v Mohd Naki
(FC) [2014] 7 CLJ 441
The appellant's 14 year old daughter, Nazmie Jaan
binti Mohd Naki (SP16) and 13 year old son, Syed Ahmad Nawab Shah
bin Mohammad Naki (SP17), were called to give evidence for the
prosecution. Both testified to knowing a person named "Nowshad" whom
they call "Uncle Amid". Other than Uncle Amid being at his house about a
month prior to his father's arrest, SP17's evidence did not incriminate the
appellant.
SP16 testified that after she went to the toilet that particular night she
saw Uncle Amid talking to her father. A quarrel then broke out. She felt
scared. From her room SP16 said, "mereka gaduh lebih kuat lagi". SP16
testified "uncle duduk di lantai. Ayah masa itu ada depan dia mengadap
uncle.... Saya ada nampak macam ayah pegang apa saya tak nampak".
SP16 then said, "Saya memang nampak ayah saya pukul dengan besi.
Memang saya nampak. ? Pagi tadi saya kata saya tak nampak sebab
saya takut.... Masa saya nampak ayah pegang besi, Uncle Amid masih di
bawah".
The direct evidence that the appellant was the person who hit the
deceased with an iron rod came from a child witness (SP16) who had given
evidence on oath and whose evidence was not corroborated. The manner a
child witness may choose to give his/her evidence is provided by
the Evidence of Child Witness Act 2007.
Section 133A of the Evidence Act 1950 provides for the weight to be given
to the evidence of a child witness and the proviso to this s. 133A expressly
provides that an accused is not liable to be convicted unless the evidence
is corroborated by some other material evidence thereof implicating him.
We observe that the trial judge who heard the evidence of child witness
SP16, as well as the trial judge who heard the evidence of child witness
SP17, had not conducted a preliminary inquiry as to their comprehension of
the duty of speaking the truth and the nature of an oath or affirmation.
Public Prosecutor v Chan
Wai Heng [2008] 5 MLJ 798
(i)the sessions court judge was not the person who posed the questions to the child;
and
(ii) the child was not cross-examined by defence counsel apparently in aid of
ascertaining the level of the child's understanding.
Court -
It is clear from a scrutiny of the above mentioned paragraphs that the sessions
court judge had satisfied himself that the child witness of seven years did not
comprehend the oath and thereafter embarked on a process of ascertaining the
child's level of understanding. There does not appear to be merit in the contention
of learned counsel for the respondent that in the process of ascertaining the
competency of the child it is obligatory that the questions must have been posed by
the sessions court judge himself as a prerequisite to the admissibility of the
evidence. embarking on the process of permitting the prosecution to lead evidence
on the acts that were committed on SP7 by the respondent. (in this case the
questions were asked by the DPP)
There was here not a total absence of the inquiry of
ascertaining the level of understanding of the child but a
suggestion that the child must be cross examined, in other
words, that there should be conducted a voire dire. As
indicated above the decision in Sidek bin Ludan did not contain
that suggestion. We would disagree if it were to be so
suggested as it would not reflect the correct approach.
Moreover the grounds of judgment and the notes of evidence
of the sessions court judge disclosed that he had indeed
directed his mind to the requirements of s 133A before
embarking on the process of permitting the prosecution to lead
evidence on the acts that were committed on SP7 by the
respondent. (whether there is any specific method to conduct
the enquiry?)
SHAMSINAR ABDUL HALIM
lwn. PP & RAYUAN LAIN
[2018]
1 LNS
Melalui pembacaan kami,422
seksyen 133A tersebut bukanlah satu yang
mandatori untuk hakim bicara atau pihak pendakwaan untuk mengadakan
satu siasatan awal untuk menentukan takat kepandaian seseorang saksi
kanak-kanak. Hakim bicara mempunyai budi bicara untuk menerima
keterangan seseorang saksi kanak-kanak yang masih mentah sekiranya pada
pendapat Mahkamah kanak-kanak itu memahami apa sebenarnya sesuatu
sumpah itu.
Dalam kes Tajudin, supra, saksi kanak-kanak itu hanya berusia 10 tahun
semasa memberi keterangan dan dalam kes Mohd Naki, supra, 2 orang saksi
kanak-kanak itu baru berusia 13 dan 14 tahun semasa memberi keterangan.
Di dalam kes di hadapan kami sekarang, SP11 telahpun mencapai usia 17
tahun semasa memberi keterangan. Hakim bicara telah melaksanakan budi
bicara kehakimannya dalam kes ini apabila membenarkan SP11 memberi
keterangan secara bersumpah dengan tanpa perlu mengadakan siasatan awal
untuk menentukan tahap kepandaian SP11 sama ada SP11 memahami
keperluan untuk berkata benar. Walau apa pun, keterangan SP11 telah
disokong oleh lain-lain keterangan daripada saksi-saksi SP9, SP10, SP13 dan
SP15 terhadap identiti Perayu Kedua sebagai orang yang telah menembak si
STEVEN PANGIRAJA &
ORS [2014] 4 CLJ 418
In the instant case it was contended before us the evidence of SP3 (the
victim) and SP10 (her classmate) who witnessed the victim being dragged
into the car were children and the learned trial judge did not conduct a
preliminary inquiry to test the competency of the witness as required under
ss. 118 and 133A of the Evidence Act 1950 (‘EA 1950’).
There is no requirement under the Act to conduct a preliminary inquiry
though case laws requires the competency to be tested for child of tender
years and not child per se.
Section 118 of the EA 1950 only comes into issue if the court considers that
a child of ‘tender years’ gives evidence. It is difficult to fathom how SP3 and
SP10 who were school going and aged 15 years at the time of giving
evidence will fall within the definition of ‘tender years’ stated in s. 118 of
the EA 1950
Section 133A of the EA 1950 also relates to ‘child of
tender years’. Though there are sufficient material in
the judgment to satisfy that the court has taken
cognisance of s. 133A, but again the evidence of SP3
and SP5 will not fall within the definition of ‘Child of
Tender Years’ on the factual matrix of the instant case.
In the instant case the learned judge has been extra
cautious and was fully aware of the competency issues
relating to ‘sufficient intelligence’,
When to conduct the preliminary enquiry?
Mohammad bin Abdul Kadir v Public
Prosecutor [2012] MLJU 1127
In my view S. 133A required the inquiry to be held at the initial
stage immediately after the witness steps in to give evidence
with the twin objectives that I have alluded to earlier, in mind;
first to determine whether he possesses sufficient intelligence to
give evidence and further to determine whether he could
understand the nature and consequence of an oath.
Nevertheless, no one will know if the child is sufficiently
intelligent to give evidence before the court until an inquiry is
conducted, no matter how simple and how brief the inquiry is. In
my view, the reason the law requires this procedure to be
followed is simply because the law recognised the need to be
cautious is dealing with the evidence of a child of tender years
Sidek bin Ludan v Public
Prosecutor [1995] 3 MLJ 178
The proviso to s. 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 (PP 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, s. 133A of the Act,
applies.
... From the wording of s. 133A of the Act, the trial court is obligated by way of
a preliminary examination to ascertain the child's capacity to understand and
give rational answers.
PP v. GURDIAL SINGH PRETUM
SINGH & ORS [2003] 1 CLJ 37
At about 1.15pm on 29 September 1999, three or four masked men forcibly
abducted Shaun Lim Jian Wei, a boy of seven, who was on his way home from school
in a chauffeur-driven car with his mother (SP15 Christina Thio Swee Geok) and
sister.
Shaun gave a deposition of all that had happened to him whilst in captivity. But
before Shaun gave his deposition, the court conducted an enquiry to test the ability
of Shaun to understand the nature of an oath, and to ascertain if Shaun is
possessed of sufficient intelligence to justify the reception of his evidence and
understands the duty of telling the truth, for Shaun was not even nine years old
when he was called to testify for the prosecution (on the necessity of such an
inquiry, see Yusaini bin Mat Adam v. PP[2000] 1 CLJ 206, and, Sidek bin Ludan v.
PP[1995] 1 LNS 219; [1995] 3 MLJ 178). Shaun showed remarkable intellect,
precocity and the ability to comprehend all questions put to test him during the
inquiry conducted under s. 133A of the Evidence Act. But Shaun's evidence was
received not on oath, as the court although convinced that Shaun had more than
sufficient intelligence to justify the reception of his evidence and understood the
duty of speaking the truth was yet not convinced that Shaun truly understood the
nature of an oath.
PP v. GURDIAL SINGH PRETUM
SINGH & ORS [2003] 1 CLJ 37
In other words, the evidence of a child witness who does not understand the
nature of an oath may be received, though not on oath, if that child is possessed
of sufficient intelligence to justify the reception of the evidence, and understands
the duty of telling the truth.
However, there is a proviso pertinent to criminal trials where evidence admitted
under s. 133Ais given on behalf of the prosecution, the accused cannot be
convicted of the offence, unless that evidence admitted under s. 133A is
corroborated by some material evidence in support thereof implicating him. "The
effect of this amendment (s. 133A), particularly the proviso therein, is that a
conviction cannot stand on the uncorroborated evidence of an unsworn child
witness.
It is now insufficient to merely give a warning on the dangers of so convicting, as
the new provision now makes it a rule of law that the evidence of an unsworn
child witness shall be corroborated" (Evidence in Malaysia and Singapore by
Rafiah Salim, 2nd edn, p. 146). It follows therefore, that where the sworn
evidence of a child witness is given on behalf of the prosecution, an accused can
be convicted of the offence, even if that sworn evidence is not corroborated by
some material evidence in support thereof implicating him. (Sworn vs Unworn
Testimony)
Shaun showed that he was able to understand questions put to him and give
rational answers, that he was possessed of sufficient intelligence to justify the
reception of his evidence, and that he was able to understand the duty of telling
the truth. Shaun said that an oath meant that "he must tell the truth, and not
tell lies or cheat". Shaun said that he understood each word in the oath.
Nonetheless, the court was of the opinion that Shaun ought not to give his
evidence on oath, by reason of his tender age.
It is not easy to put a finger on it, but the witness oath, even if it is not a
religious asseveration, is still a most solemn promise with all the undertones of
an appeal to a higher order as witness, to speak the truth. An oath is a grave
and solemn matter. But Shaun, for all his precocity, was still raw leather. The
taking of an oath by a child of nine years, who would not reasonably have had
the maturity to understand the true nature of an oath, would have made a
burlesque of that which is most solemn. Shaun was not admitted to give his
evidence on oath.
