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Nov 8, 2004
Pendakwa raya perlu pantau kertas siasatan
PUTRAJAYA: Pendakwa raya perlu memantau kertas siasatan dan memainkan peranan penting pada peringkat awal bagi menentukan arah dan memantapkan siasatan sesuatu kes, kata Ketua Hakim Malaya, Tan Sri Haidar Mohamed Noor.
Beliau berkata, pendakwa raya bertanggungjawab menentukan siasatan dijalankan dengan baik dan ini boleh dilakukan jika mereka menunjukkan minat yang lebih terhadap perkara itu.
Haidar yang akan bersara Isnin depan, berkata selain itu, penguasaan bahasa Inggeris, dedikasi dan minat adalah punca kejayaan dan sikap yang perlu ada pada setiap timbalan pendakwa raya.
“Sikap yang memerhati jam dan tidak sanggup berkorban masa tidak akan membawa mereka ke mana-mana.”
“Begitu juga tugas seorang hakim. Saya pernah memberitahu rakan hakim, kadang-kadang mereka perlu membawa pulang kerja ke rumah kerana jika tidak, kerja tidak akan siap dan akan tertangguh,” katanya pada sidang media di pejabatnya di sini, semalam.
Haidar yang tidak sabar untuk bersara berkata, bukan mudah menjadi hakim kerana ia tugas berat yang mendedahkan diri kepada kritikan.
“Hakim harus bersikap terbuka. Apabila sesuatu penghakiman dikritik, bukan bermakna hakim itu dikritik sebagai individu.
“Prinsip yang dipakai, jika ada yang mengadu tidak puas hati terhadap sesuatu penghakiman, mereka perlu gunakan hak, iaitu merayu pada peringkat yang lebih tinggi,” katanya.
Haidar juga berkata, beliau berpegang kepada nasihat ibunya supaya jangan biadab dan sentiasa berbuat baik sesama manusia.
Posted at 11:57 am by durra
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Hakim diberi kebebasan percepatkan kendali kes
PUTRAJAYA: Sistem kehakiman negara memberi kebebasan kepada hakim mempercepatkan pengendalian kes di mahkamah mengikut kaedah sesuai termasuk budi bicaranya berteraskan peruntukan kehakiman.
Hakim Besar Malaya, Tan Sri Haidar Mohd Noor, berkata hakim boleh mengehadkan pemeriksaan balas berdasarkan kehendak dan hubung kait dengan sesuatu kes.
"Dalam memberi kebenaran terhadap pemeriksaan balas, hakim berhak menggunakan segala budi bicara mereka manakala peguam pada setiap masa perlu mengemukakan fakta kepada mahkamah apakah ia (pemeriksaan balas) perlu atau relevan.
"Dalam hal ini, hakim perlu mengkaji keperluan pemeriksaan balas mengikut kes. Bagaimanapun, ia mesti berlandaskan faktor kehakiman bukannya dilakukan secara mudah, mengikut suka-suka atau atas faktor peribadi," katanya kepada pemberita di pejabatnya di Kompleks Mahkamah Keadilan di sini, semalam.
Haidar mengulas laporan sebuah akhbar berbahasa Inggeris semalam yang memetik kenyataan Hakim Mahkamah Tinggi, Datuk Abdul Wahab Patail berhubung kaedah yang dilakukan bagi mempercepatkan perbicaraan kes yang didengarnya, termasuk mengehadkan pemeriksaan balas.
Haidar menjelaskan kenyataan Abdul Wahab itu disalah tafsir yang mana Hakim Mahkamah Tinggi itu mengulas atas topik pengurusan kes serta bagaimana beliau mengendalikan kes yang didengarnya termasuk berhubung kebenaran pemeriksaan balas.
Haidar memberitahu, beliau sudah meminta Abdul Wahab memberi penjelasan berhubung artikel yang disiarkan itu dan Abdul Wahab mengakui artikel itu bercanggah.
Dalam artikel itu, Abdul Wahab dikatakan memberi beberapa kaedah mempercepatkan perbicaraan termasuk menganggap pemeriksaan balas tidak akan memanfaatkan mahkamah kerana tidak memberi maklumat atau gambaran sepenuhnya.
Abdul Wahab juga dilaporkan tidak akan memanggil saksi sekiranya berpuas hati dengan bukti berteraskan dokumen selain menghalang peguam melakukan pemeriksaan balas hanya kerana beliau (peguam) mahu mempersoal atau menyoal pihak lawan.
Haidar berkata, pemeriksaan balas termaktub dalam Akta Keterangan dan setiap tertuduh mempunyai hak untuk disoal dan ia tidak boleh dipandang mudah.
"Bagaimanapun, hakim bebas memberi pandangan apakah jika kebenaran diberi (bagi pemeriksaan balas), ia akan membuang lebih banyak masa mahkamah.
"Semuanya perlu ditimbang atas fakta kukuh dan alasan munasabah," katanya sambil menambah setakat ini beliau tidak pernah menerima aduan mengenai tindakan hakim terutama kes sivil enggan membenarkan pemeriksaan balas tanpa menimbang sepenuhnya faktor yang membenarkan soal balas dilakukan.
Sementara itu, Haidar yang akan bersara wajib Jumaat ini, berkata usaha masih dibuat bagi memudahkan prosedur kes sivil.
"Kita masih meneliti cadangan itu. Saya ada mencadangkan supaya sebuah jawatankuasa khas ditubuhkan bagi mengkaji cadangan memudahkan prosedur kes sivil di mahkamah," katanya.
Beliau berkata, usaha memudahkan prosedur kes jenayah mungkin agak sukar kerana ia membabitkan banyak implikasi termasuk keperluan meminda Kanun Prosedur Jenayah (KPJ).
Posted at 11:53 am by durra
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Sep 23, 2004
ISA merosakkan institusi kekeluargaan
ISA merosakkan institusi kekeluargaan
Wednesday, September 22 @ 11:04:40 MYT
Oleh Wan Nordin Wan Yaacob
KUALA LUMPUR, 22 Sept (Hrkh) - Penggunaan Akta Keselamatan Dalam Negeri (ISA) ke atas rakyat yang tidak bersalah sekaligus merosakkan institusi kekeluargaan antara suami, isteri dan anak-anak.
Ustaz Ismail Noh (PAS-Pasir Mas) berkata, penggunaan ISA ke atas rakyat yang belum didapati bersalah memisahkan hubungan kekeluargaan.
Beliau berkata demikian semasa membahaskan Rang Undang-undang Perbekalan 2005 di Dewan Rakyat semalam.Perbahasan Belanjawan 2005 semalam, masuk hari yang ke enam.
"Tahanan ISA sehingga kini dilonggokkan dalam kem tahanan tanpa sebarang pendakwaan bagi membuktikan kesalahan," ujarnya.
Ujarnya lagi, tahanan ISA seharusnya dibicarakan di mahkamah untuk dipastikan tuduhan ke atas mereka benar atau tidak.
Tambahnya,Islam sendiri tidak menghalalkan tindakan menghukum seseorang tanpa dibicarakan dahulu.
Beliau mendakwa penggunaan ISA itu sekaligus merosakkan institusi kekeluargaan dengan memisahkan antara anak, isteri dan suami.
Selain itu katanya, perkembangan terkini mengenai pembebasan mantan Timbalan Perdana Menteri,Dato'Seri Anwar Ibrahim perlu dijadikan teladan kepada kerajaan dan institusi kehakiman dalam isu ISA.
"Jika Anwar boleh dibebaskan, kenapa tahanan ISA masih dibelenggu dengan akta yang zalim itu.Tuduhan ke atas mereka (tahanan ISA) belum tentu betulnya lagi" katanya lagi.
Justeru beliau sekali lagi mengulangi gesaan kepada kerajaan agar mebebaskan tahanan ISa atau setidak-tidaknya menghadapkan mereka ke mahkamah untuk diadili secara telus dan saksama.
Sebelum ini Gerakan Mansuhkan ISA (GMI) pernah menggariskan pendapat mengenai penggunaan ISA yang menyalahi Islam.
Antaranya GMI menyebut,penggunaan akta itu bertentangan dengan ketetapan Islam yang meletakkan had batasan kepada kuasa pemerintah. Kuasa pemerintah, antara lain, dalam menegakkan keadilan mestilah tertakluk melaksanakannya melalui proses perbicaraan dalam mahkamah terbuka.
Selain itu ISA juga menyalahi dan mengabaikan panduan Rasulullah s.a.w. dalam menjatuhkan sesuatu hukuman terhadap seseorang.
Ini kerana menurut GMI, ISA adalah undang-undang yang tidak memerlukan pihak kerajaan mengemukakan sebarang pendakwaan, tidak memberi peluang pembelaan kepada tertuduh dan tiada sebarang perbicaraan dilakukan.
GMI berpendirian, ISA turut menyalahi dan melanggar panduan Rasulullah s.a.w. agar hakim tidak membelakangkan kebenaran atau pun tidak jahil ketika menjatuhkan sesuatu hukuman.
GMI dalam kenyataannya sedikit masa lalu menyifatkan Menteri yang bertindak sebagai hakim telah melanggar panduan Rasulullah s.a.w. agar seseorang muslim itu tidak menjatuhkan hukuman ke atas seseorang tanpa pengetahuan atau dengan sengaja membelakangkan pengetahuannya tentang kebenaran.
ISA juga dikatakan menyalahi dan melanggar perintah Rasulullah s.a.w. agar menjauhkan dan meninggalkan syubahat, iaitu perkara-perkara yang meragukan. ISA melanggar prinsip-prinsip kebenaran dan keadilan.
Walaupun dikatakan untuk digunakan bagi menjaga masalah ummah (kepentingan umum) seperti menjaga keselamatan negara dan ketenteraman awam, ISA tetap bersifat syubhat dan meragukan apabila wujudnya penahanan tanpa bicara dan pemberian kuasa terlalu luas kepada pihak berkuasa.
Akhir sekali ISA turut menyalahi dan melanggar tuntutan agar menyiasat dengan teliti sebelum membuat sesuatu keputusan dan tindakan (rujuk Surah An-Nisa': 94 dan Al-Hujurat: 6).
Di bawah ISA, Menteri berkuasa membuat keputusan dan menjatuhkan hukuman berdasarkan laporan satu pihak iaitu polis.
Sehingga kini, 82 tahanan yang dituduh terlibat dengan rangkaian Kumpulan Mujahidin Malaysia (KMM) dan Jemaah Islamiyah (JI) masih ditahan di bawah ISA. - mks.
Posted at 02:57 pm by durra
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Sep 21, 2004
THE JUDGMENT BY THE TESTIMONY OF ONE WITNESS WITHOUT TAKING THE OATH.
(NO CORROBORATION IS REQUIRED TO STEGHTEN THE PROOF).
First View: The comradeshave declared that the testimony of one man without the oath is acceptable in the case of necessity.
Second View: A number of former judges have stated that the judgment by one witness is acceptable even without taking the oath, if the truthfulness of the witness was known.
1) Abu Obaid said: "We were told that two of the greatest judges of Iraq, Shuraih and Zararah b. Abi Awfa (may Allah bless them), decided according to the testimony of one witness. There was no mention of the oath in their 'Hadith'.
2) Al-Kaib b. Humaid told us from Hammmad b. Salamah from Emran b. Jadr that he said: Abu Mejlaz has testified before Zararah b. Abi Awfa, that Abu Mejlaz said: He [Zahrah] approved my testimony alone, but he was not right. [Ibn Al-Qayyim says] I say Abu Meljaz is not right, because if the judge knew the witness' truthfulness, it is permissible for him to decide according to his testimony, but if he [the judge] wanted to strengthen it with the oath he can do so. Otherwise it is not a condition. When the Prophet (PBUH) decided by witness, testimony and the oath he did not make it a condition, but he strengthened the witness' testimony with oath. This indicate that as a general principle, a testimony of one witness could be accepted and admissible as evidence provided that the testimony is strong and there's no need to corroborate it with the other means of proof such as qarinah by way of oath.
3) Abu Dawood said, in Al-Sunan,: "It is legal for a judge to decide by one [male] witness if he knew his truthfulness". He then referred to the 'hadith' of Khuzaimah b. Thabit as has been mentioned before.
From that particular 'hadith', it shows that it is sufficient to decide by one male witness if his truthfulness was known, since the Prophet (PBUH) did not say to Khuzaimah: Besides you, I need another witness, but he considered his testimony equal to two witnesses because it included the general truthfulness of the Prophet (PBUH) in everything which he is telling from Allah.
1) In Al-Sahaihain(Sahih Bukhari&Muslim) correct and accurate two sources of the sunnah from Abu Qatadah, he said: "We went out with the Messenger (PBUH) in the year of 'Khaybar', and when we met [with the enemy] there was a round for Muslims, he said: "I saw a man from the unbelievers bending over a Muslim man, therefore I turned towards him and I came from behind and I hit him with the sword on his neck, then he came to me and hugged me in such a strong way that I felt the smell of death, then de died and released me, so I followed Umar bin Al-Khttab and I said: "What happened to the people?" Umar said: "I is the order of Allah". Then the people went back. The Messenger (PBUH) sat and said:" He who has killed one and has a proof has the right to get his spoils". I stood and asked: "Who testifies for me?". Then I sat, Abu Qatadah said: The Messenger repeated his statement, and I stood. The Messenger (PBUH) asked:" What happened to you O Abu Qatadah?". Then I told him the story, and a man from the people said: O Messenger of Allah, he is telling the truth and the spoils of the slain man are with me, so compensate him. Abu Bakr said: "No, by Allah, we will not turn against the one who is very brave and fights for the sake of Allah and His Messenger, then we will give you his share [of spoils]. The Messenger (PBUH) said: "He [Abu BAKR] has said the truth, therefore give the spoils back to him [Abu Qatadah]. Abu Qatadah said: "I got it back and I sold the armour and I bought a piece of land at Bany Salamah. It was the first wealth I owned in the era of Islam."
The above indicates that proof can be taken from one witness, since the Prophet (PBUH) did not ask the witness to take the oath. This is only one indication in this case, and it is correct; that it can be legal to judge by the spoils based on the testimony of one witness, and there's no contradictory evidence against this tradition nor is there any reason for not accepting it. Allah knows best.
The Messenger (PBUH) in the other occasion permitted the testimony of one witness even without an oath.
2) It was narrated in AlShaihain (Bukhari&Muslim) from the Hadith of Abi Qatadah that he said the Messenger (PBUH) said on the day of Hunain: "He who has killed[an un believer] and has proof, he has the right to his booty". Then I stood and said:" Who testifies for me?" Then I sat and said: "Who testifies for me?".[The Prophet] said: "O Aba Qatadah, what happened to you? Then I mentioned the affair of slain to the Messenger (PBUH) and one of his companions said: "He told the truth O Messenger of Allah, and the booty is with me, therefore compensate him. Abu Bakr said: "No by Allah, we will not compensate ordinary Quraishi and let one of the brave people who fight for the sake of Allah and His Messenger. The Messenger (PBUH) said: "He told the truth. Pay it [the booty] back to him, and then it was paid back to me".
In the above case there are three opinions in the schools:
The first : Is that there must be two witnesses.
The second : Is that one witness and the oath are sufficient.
The third : Is that one witness is enough, and this is the correct one, in this evidence. It is based on this correct Hadith which has no contradiction and there's no reason to leave it.
3) Abu Dawood said in his 'Sunan': Chapter: "If the judge knew of the truthful of one witness, he can decide based on him". Then he [Abu Dawood] mentioned Haadith of Khuzaimah b. Thabit.
4) Al-Shafi'I said: Emran b. Hudair mentioned from Abi Miljaz, that he said: "Zurarah b. Abi Awfa, may Allah bless him, has judged basing on my testimony alone".
5) Shu'bah said from Abi Qays, from Abi Ishaq that "Shuraih has permitted the testimony of each alone".
6) Al-A'mash said from Abi Ishaq that "Shuraih has permitted my testimony alone".
7) Abu Qays said: "I have testified to Shuraih on a 'Mushaf' Holy book, and he accepted my testimony alone".
1) TESTIMONY OF ONE FEMALE WITNESS
First View:
The testimony of the woman alone is acceptable.
Other than Hudud Punishment:
According to a group of scholars it is permissible to decide by the testimony of a woman alone in matters other than the Hudud and the Qisas [punishment].
1) Abu Ubaid said: Yazeed told from Jareer b. Hazen from Al-Zubair b. Hareeth from Abu Lubaid that a drunk divorced his wife three times [in one sentence] and Umar was told of this case, and four women testified ti this, therefore Umar accepted the testimony and separated them [the husband and wife]. Ibn Abu Za'dah told us from Yazeed from Hajjaj from Ata' that he allowed the testimony of women in the case of marriage.
Hudud Punishment:
First View:
Some people said that the testimony of women is accepted in the Hudud 'punishment'.
The best one being that the testimony of one woman is permitted on matters which men cannot witness.
Second View:
The testimony of the woman alone is not acceptable.
1) Muhanna said: "I asked Ahmad concerning the testimony of the mid wife only in the birth of the child, and he said: "Her testimony alone is not permitted, and he (Muhanna) said: "Ahmad b. Hanbal said to me: "Abu Hanifa said: "The testimony of the midwife alone is permissible, even if she was a Jewish or a Christian", so U asked Ahmad:"Is his opinion the same as Abu Hanifa? He answered: "I do not say the testimony of one Muslim woman is acceptable therefore how can I say: A Jewish?
2) Ahmad b. Al-Qasim said: "Ahmad was asked about the testimony of a woman on delivery and child birth is it permissible to have the testimony of one woman or two? He said: "Two women or more. One is not the same as two".
3) Abdul Rahmansaid from Sufian that he said: I heard Zaid b. Aslam telling that "Umar b. Al-Khattab (may Allah be pleased with him) did not permit (one) woman's testimony in the suckling".
Judgment by one witness without an oath may take many forms. Among which is:
If one witness has testified on the sighting of the crescent of the month of Ramadhan, in the view of the school of Ahmad based on Hadith of Ibn Umar, narrated by Abu Dawood:
"People looked for the crescent, then I told the Messenger that I had seen it, and then he fasted and ordered the people to fast".
However there's another narration in the school of Ahmad that the establishment of the crescent cannot be except by two, and the evidence of this is what was narrated by Al-Nasa'I and Ahamd and others from Abdul Rahman b. Zayd b. Al-Khattab from the companions of the Messenger (PBUH) is that he said: "Fast when you see the crescent and break the fast when you see it, and abstain. If it was hidden from you complete thirty days, and if two just witness testify then fast, and break the fast".
The above has no evidence by the way of its wording, and from its meaning it has the following elements: that is if the subject of the crescent of Shawwal: There must be true witnesses according to the above text, and if it was the crescent of Ramadhan: one witness is sufficient, according to the other two texts.
And the general understanding from the two traditions cannot contradict this. In addition, the bases of Islamic Law testify to the satisfaction of the saying of one witness, since that was information on the start of the worship's time, therefore one witness was sufficient, as some as the information on the start of prayer time is by the 'Athan' [Informing]. There's no difference between the two cases.
3) TESTIMONY OF A MALE WITNESS AND OATH OF THE PLAINTIFF
As general rule the shahadah of a man and the oath of a plaintiff can be accepted in cases involving property only. This is based on the views of the Four Rightly Guided Caliphs, 'Umar bin 'Abdul Aziz, Shuraih, Malik, Ibn Abu Laila,Abi Al-Zinan, Al-Shafi'I and Ahmad bin Hanbal.
On the other hand they say that the shahadah of a man and the oath of the claimant should be accepted based on a hadith of the Prophet SAW. They preferred to use al-nukul 'an al-yamin and al-yamin al-mardudah which is not mentioned in the Quran but nevertheless accepted as a means of proof by way of qiyas.
It has been related that Holy Prophet has accepted the testimony of one witness endorsed by the oath of the claimant in support of his claim.
Based on this hadith, Imam Malik, Imam Shafii and Imam Ahmad Ibn Hanbal accept the testimony of one witness alongwith the oath of the claimant in all civil matters.
Muslim narrated in hih 'sahih' compilation from the Hadith of Amr b. Dinar from Ibn Abbas that the "Messeger (PBUH) judged by a witness and on oath". Amr said: "In the properties".
But according to Imam Abu Hanifah such testimony is not acceptable in any case. He argues that the Qur'an's stipulation for testimony is two men or one man and two women; and that the hadith that Holy Prophet accepted the testimony of one witness alongwith the oath of the plaintiff is substantiated by the authority of one narrator only; and such hadith cannot abrogate the order of the Holy Quran.
However, the later jurists have accepted such testimony in all matters except hudud.
THE TESTIMONY ON THE TRANSLATION
The testimony of one witness, without the oath, is acceptable in the translation, identification, the message, invalidating [the testimony] of a witness, and praising him.
1) Ahmad mentioned [All] this according to one of two narrations from him.
2) Al-Bukhari has mentioned the same in his sahih 'compilation' when he said: Chapter: The translation to the judges, can one translator be legal?"
3) Kharijah b. Zaid said from Zaid b. Thabit that the Prophet (PBUH) ordered him to study Jewish writing, "until I was writing for the Prophet (PBUH) his letters and I was reading their letter if they wrote to him". Umar said, while Ali, Uthman and Abdul Rahman b. Awf were present, "What does this woman say?" Abdul Rahman b. Hatib said: "She is telling you what her comrade has done with her".
4) Abu Jamrah said: "I was translating between Ibn Abbas and between people".
KHILAF BETWEEN THE SCHOLARS:
Malik, Al-Shafi'I and the choice of Al-Khuraqi: A judge has to have two translators.
Abu Hanifah : Only one witness is sufficient.
It is correct based on what has preceded, and it is the choice of Abi Bakr.
CORROBORATION UNDER ISLAMIC LAW
There are several types of corroborations under the Islamic Law namely:
1) Circumastantial Evidence(Al-Qarinah)
Qarinah means : 'Together, accompany or related'. Qarinah also means a thing which explains something.
2) Documentary Evidence(Al-Kitabah)
It's the documents, statements or notes written by someone who may be in apposition of authority or a judge or an ordinary citizen.
3) Evidence by Oath(Al-Yamin)
In technical sense an oath is an utterance accompanied by the invocation of the name of Allah for purposively stating (tahqiq) something over a matter which will not proved except by way of oath. This also includes past and future matters.
That's all about the opinions of the jurists pertaining to the issue of the admissibility of the testimony of one single witness in order to prove the fact of a case under the Islamic Law. Some of the jurists accepted the principle that the testimony of one single witness is sufficient to prove any case provided that the witness is credible and the evidence given is strong. While, the other jurists rejected that principle by saying that the number of witness required should be more than one witness as what has been fixed by the Holy Qur'an.
Based on our understanding, we are of opine that what basically provided under the Islamic Law is no much different as compared to the English Law. The General Principle of the Islamic Law pertaining to the number of witnesses is that no particular number of witnesses shall in any case be required for the proof of any fact. Though Islamic Law has prescribed certain number of witnesses for the proof of certain offence such as zina and qazf, but at the same time Islamic Law does not reject single testimony if it otherwise authentic and satisfactory.
Aishah, may Allah be pleased with her, reported:
"Hind, bint 'Utbah, wife of Abu Sufyan, came to Allah's Messenger (may bless be upon Him) and said: Abu Sufyan is a miserly person. He does not give adequate maintenance for me and my children, but ( I am constrained) to take from his wealth (some part of it) without his knowledge. Is there any sin for me? Thereupon Allah's Messenger (may bless be upon Him) said: Take from his property what is customary which may suffice you and your children"
Abu Hurairah reported:
"Allah's Messenger (may bless be upon Him) said: While two women had been going along with their two sons, a wolf came and made away with the child of one of them. One of them said to her companion: It is with your child that it (the wolf) has run away. The other one said: It has run away with your child. They brought the matter to (Hadrat) Dawud (David) for decision and he made a decision in favour of the elder one. They then went to Solomon son of Dawud(may bless be upon Him) and told him (the story). He said: Bring me a knife so that I may cut him (the child) (into two parts) for you. The younger one said: No, it cannot be, may Allah have mercy upon you, he (the child) belongs to her (the elder). So he gave a decision in favour of the younger one."
Furthermore, no definite number of persons is necessary to constitute conclusively substantiated testimony. The determination of their number is left to the discretion of the judge. The credibility of the witness and the weight of the evidence given is the most consideration that should be exercise by a judge before delivering his judgment, so that at the end of the day, justice is seen to be done to all the parties in dispute.
Amr bin AL-As reported:
"I heard Allah's Messenger (may bless be upon Him) as saying: When a judge gives a decision, having tried his best to decide correctly and is right, there are two rewards for him, and if he gave judgment after having tried his best (to arrive at a correct decision) but erred, there is one reward for him"
In conclusion, the jurists are on the different opinion regarding this issue. As a Muslim, we should accept this as a bless from Allah SWT who knows everything. Remember that, Islam is a comprehensive and universal religion. Allah SWT would not impose any burden on His servants. Allah SWT said:
"Oh no soul doth God place a burden greater than it can bear". (2:186).
Wallahua'lam.
CONCLUSION
Under our law which is based on English Law, the general rule is that the court may act based on the evidence of one single witness without any corroboration. The condition here is that the judge must always observe the credibility of the witness.
However, in cases where the facts fall under the exceptional circumstances, then corroboration is a requirement. As regards to the exceptions, the testimony of a single witness should be corroborated.
When corroboration is required as the matter of law, the court should require corroboration. In these cases, if the prosecution fails to produce any corroborative evidence, it is illegal to convict the accused for the crime. The conviction can be quashed because of its illegality.
When corroboration is required as a matter of practice, though it is not illegal but it is not safe for conviction without any corroboration. The defence counsel could at anytime appeal before the court if the court convict the accused person based on uncorroborated testimony of a single witness.
On the other hand, the principle under the Islamic Law is not much different as compared to the position under the English Law. The general rule is that, no such number of witnesses is fixed to prove any fact of case except in the certain cases like hudud cases. If a judge feels that the testimony of one single witness is reliable and strong, he could accept such testimony without requiring any corroboration. However, there's no any specific exception where the judge must require corroboration. It always depends on the discretion of the judge whether to require corroboration or not based on the merit of the evidence given. Under the Islamic Law, doing justice is almost the ultimate goal in delivering judgment. Why don't we believe that Islam as the comprehensive religion covered all the aspects of our live. Islamic civilization had begun earlier than the other civilization.
Allah SWT knows the best.
REFERANCES:
- Abdullah Yusuf 'Ali, 'The Holy Qur'an, Text and Traslation', Islamic Book Trust, Kuala Lumpur,1994
- Augustine Paul, Evidence , Practice and Procedure in Malaysia, MLJ Sdn Bhd.K. Lumpur,( 2000)
- Dr. Abbas Al- Ubudi, Syarh Ahkam , Qanun Thbat al- Madani, Jordan, Maktabah Darul Thaqafah, (1999).
- Dr.Abdul Karim Zaidan, Nizam Al-Qadha', Darul Basyir, Amman, 1995
- Dr.O.K.Rahmat, Keadilan Di Dalam Sistem Mahkamah Islam, Yayasan Dakwah Islamiah Malaysia, Kuala Lumpur, 1994
- Harding, Andrew, Law Government and the Constitution in Malaysia, MLJ Sdn. Bhd.(1996)
- Ibn Qayyim Al-Jauziyyah, 'At-Turuq Al-Hukmiyyah fi As-Siyaasah As-Shari'iah'(The Legal Methods in Islamic Administration), Translated with commentary by Prof.Dr.Ala'eddin Kharofa, International Institute of Islamic Thougt and Civilization(ISTAC),Kuala Lumpur, Malaysia, 2000
- Mahmud Saedon A.Othman, An Introduction to Islamic Law of Evidence,The Open Press, Kuala Lumpur, 2000
- Oxford Dictionary of Law
- Prabhas C. Sarkar and Sudipto Sarkar, Sarkar 'Law of Evidence', !5 th Edition,
Sarkar & Son (put) Ltd, Calcutta(1999).
- Prof.Dr. Anwarullah, Principle of Evidence in Islam, A.S. Noordeen
- Sherman Dictionary of Law
- Taha J. Al-'Alwani, The Rights of the Accused in Islam, Arab Law Quarterly, vol.10,1995
CAUTION
Umar himself set a remarkable example for his judges to follow and also warned then not to deviate from it. In his letter to Mua'dh he wrote:
"As to what follows: Verily, legal judgment is an established religious responsibility, and a practice (sunnah) to be emulated. So if it is assigned to you, remember that speaking the truth, when there's nothing to back it up, is useless. Make peace between people in your sessions, in your countenance, and in your judgments, so that no decent person will ever have anything to say about your unfairness and so that no oppressed person will ever despair of finding justice with you".
Avoid being angry, annoyed, irritated, or upset by people. Do not be hostile when hearing a case (or "towards one of the parties to a case"), for surely a right decision is rewarded by Allah and is something that will be spoken well of. Thus, one whose sincere intention is to serve the truth, even if it were to go against him, will be sufficed by Allah in what transpires between him and others.
GENERAL PRINCIPLE UNDER THE ISLAMIC LAW
According to Islamic Law the crimes and the rights with regard to their proof have been classified into two categories:
i) Hudud and Qisas
ii) Ta'zir and rights
Hudud crimes include zina (adultery and fornication), sariqah (theft), harabah (robbery), qazf (false accusation of zina) and drinking wine. Qisas crimes include murder and hurts.
The Holy Quran has prescribed four witnesses for the proof of zina (adultery or fornication) liable to hadd, two male or one male and two female witness for the attestation of a document relating to a deferred payment or any other future obligation and two witnesses for the attestation of a document or declaration pertaining to a will or a divorce. The Holy Quran and Sunnah of the Holy Prophet have not fixed any specific number of witnesses for the proof of any other offence or right disputed in a court of law. The jurists have fixed two witnesses for the proof of any hadd offence other than zina and qisas. However, all crimes liable to ta'zir and cases of rights are proved by the evidence of even one witness or circumstantial evidence or any other evidence which proves the relevant fact. Moreover oath is also a source of proof in an offence liable to ta'zir and rights when there is no other evidence. Islamic Law does not reject any true evidence even if it less that the prescribed quantum. Islamic Law lays stress on the credibility of the witnesses and not on their quantity and sex.
If a defendant can produce evidence to disprove the claim of the plaintiff and to establish his non-liability, he is allowed to present such evidence. The defendant is also allowed to dispute the credibility of the plaintiff's witnesses by submitting evidence to that effect.
It is pertinent to mention here that 'hadd' means the punishment fixed by the Holy Quran or the Sunnah of the Holy Prophet(PBUH) for a crime and it also signifies a crime for which punishment has been fixed by the Holy Quran or Sunnah of the Holy Prophet (PBUH). 'Ta'zir' means the punishment other that hadd and qisas and it also means the crime for which no punishment has been fixed by the Holy Quran or Sunnah of the Prophet. 'Qisas' means similar punishment to be given to the offender as he has caused to the victim, and it relates to the crimes of murder and hurt where infliction of similar punishment is possible.
According to Islamic Law a crime or a right is generally proved by the following sources:
i) Testimony (Shahadah)
ii) Admission and Confession (Iqrar)
iii) Circumstantial Evidence (Qarain) including documentary evidence
iv) Evidence by Expert
v) Oath
vi) Knowledge of the Qhadi
Islamic Law does not limit the sources of proof of any fact and except the offences liable to hudud, any fact can be proved by any evidence which proves the facts in issue to the satisfaction of the court.
The Holy Prophet has used the word "Bayyinah" (ÈíäÉ) for the evidence which means anything which proves or disproves the fact disputed in a court whether it be the statement of a witness, circumstantial evidence, documentary evidence, opinion of an expert, oath or any other thing with which the court is satisfied.
The Muslim jurist have also used the word 'shahadah (ÔåÇÏÉ) in its broad sense and included therein anything which proves or disproves any fact under inquiry in the court. But usually the word shahadah means the statement of a witness about the proof or disproof of any disputed matter before the court by using the expression 'ashhadu' or any other synonymous expression.
COMPARISON BETWEEN COMMON LAW PRICIPLE AND ISLAMIC LAW
The issue is that whether the requirement of the certain numbers of witnesses under the Islamic Law like in the case of zina (adultery) and theft (sariqah) is come under the general principle of the law rather than the exception to it? As what we have discussed before about the position of the witness under the Common Law as provided under Section 134 of the Evidence Act 1950, which mentions that no particular number of witnesses shall in any case be required for the proof of any fact. It lay down as the general principle of the Common Law as in the maxim 'testes ponderantur non numerantur'(witness is weighed not counted). Would this principle similar under the Islamic Law?
Before the question could be answered, it's very important and indispensable for us to clear our mind from some sort of misconception about the Islamic Law or shari'ah. It always occurred that whenever we mentioned about Islamic Law, what comes to our mind is that Islamic Law means hudud law, which is very strict and barbaric in terms of its punishment and somehow on how it be implemented.
First of all, we should understand that actually Islamic Law is not the law which only confined to the hudud and Qisas offences which is punishable with hadd punishment but Islamic Law also comprises of other types of offences like Ta'zir offences where the punishment is other than the hadd punishment.
As compared to the Common Law principle, there's no much difference since we could say that the principle thumb of Islamic Law pertaining to the number of witness in a case, is that there's no such requirement of certain numbers of witness to proof any case except in the hudud case.
Meaning that the general principle (ÚÇã) is that one witness is sufficient to prove a case provided that that the witness is a credible witness. While the exception to this general principle (ÎÇÕ) is that certain numbers of witness is required in the hudud case, though there's still disputes among the fuqaha' pertaining this issue. However, there's some difference opinion between the ulama' and the fuqaha'(the scholars) regarding the issue of number of witnesses which sufficient to prove any case. Some of the fuqaha' was on the stand that the most important thing is that the evidence which is strong and sufficient to convict an accused rather than the determination of the numbers of the witnesses to the case itself. Besides, the others was on the opinion that the numbers of witnesses required was as what has been fixed in the Qur'an which is not less than one witness and also the prescribed numbers in the hudud case.
WHAT SHOULD BE CONSIDERED BY A JUDGE IN DELIVERING JUDGMENT
For this matter in question, let us referred ourselves to some of the verses of the Quran and also the hadith from the Prophet SAW and not forgetting the practice of the sahabah(the companions).
1) The Story of Prophet Daud a.s.:
Allah SWT said in the Holy Quran which means:
1) "Has the Story of the Disputants reached thee? Behold, they climbed over the wall of the private chamber; when they entered the presence of David, and he was terrified of them, they said: "Fear not: we are two disputants, one of whom has wronged the other: Decide now between us with truth, and treat us not with injustice, but guide us to the even Path, "This man is my brother: He has nine and ninety ewes, and I have (but) one: Yet ha says, "Commit her to my care,' and is (moreover) harsh to me in speech". (David) said: "He has undoubtedly wronged thee in demanding thy(single) ewe to be added to his (flock of) ewes: truly many are the Partners (in business) who wrong each other: Not so do those who believe and work deeds or righteousness, and how few are they?". And David gathered that We had tried him: he asked forgiveness of his Lord, fell down, bowing (in prostration), and turned (to God in repentance). So We forgave him this (lapse): he enjoyed, indeed, a Near Approach to Us, and a beautiful Place of (final) Return. O David! We did indeed make thee a vicegerent on earth: so judge thou between men in truth (and) justice): Nor follow thou the lusts (of thy heart) for they will mislead thee from the Path of God: for those who wander astray from the Path of God, is a Penalty grievous, for that they forget the Day of Account".
Syed Qutb Rahimahullah in his tafsir in explaining the meaning of verse 21 to 26 of the chapter said that the administration of the state under the government of Prophet Daud a.s. was very strong and well established. The meaning of the words 'ÝÕá ÇáÎØÇÈ' in these verses means that beside his wisdom, Prophet Daud a.s. was also very strict in delivering judgment without any falter. This type of judgment was the ultimate perfection in administrating justice among the human kind. However, Prophet Daud a.s. was not avoided from receiving test from Allah SWT in order to guide him to right path.
As a King, Prophet Daud a.s. has spent his time to rule his state and give justice to the people. The other part of his time was used to serve himself to Allah SWT in his 'mihrab' or private chamber. One day, he was very surprised and terrified when two strangers climbed over the wall of his 'mihrab'. He was terrified of them because he knew that the believers would not do such a manner.
Syed Qutb in explaining the verse said that the two disputants who have asked the Prophet Daud a.s. to judge them in their dispute were actually the angels who were sent by Allah SWT to test him. The purposes were that:
i) To give lesson to Prophet Daud a.s. that he should do some investigation before delivering any judgment.
ii) To give lesson to Prophet Daud a.s. that he should govern the people with justice.
Prophet Daud had faulted in his judgment merely because:
i) He did not question the other party in dispute (the alleged person).
ii) He did not ask the accused person to produce his evidence to defend himself.
iii) The right to counter claim was not given to the accused person.
In other words, he did not give the other party (the alleged person) the right to be heard and also the right to make counter claim.
The message is clear. This case is actually not so mysterious since the two men behind the story were actually the two angels who disguise themselves as two men. Logically we would wonder how a man can just keep himself silent while the other man or party is accusing or blaming him for fault. Allah SWT intended to test Prophet Daud a.s, to teach him the manner (adab) in giving judgment as a judge. A judge should exercise his caution before giving his judgment. The most important thing is that the right to be heard must be given to both of the parties before any judgment being given to the disputants in any dispute. No judgment is to be passed between two disputing parties until both have been heard. This is to make sure the justice has been put at its place.
Based on these verses, we could say that it's not the issue of the number of witnesses which is not fulfilled but its quantum that render the judgment of the Prophet Daud a.s. faulted. The reasons were basically because he did not give chance to the other man (alleged person) to say something to rebut the claim as well as to defend himself from the allegation. It is the matter of giving right to be heard to all the parties in any dispute that is to be exercised by a judge. Let's say if the Prophet Daud a.s. had gave the alleged person in that case the right to be heard, thus it is correct to say that his judgment is right and there's no defect in it although they're the only witnesses to their dispute. Moreover, we could suggest that no particular number of witnesses is actually required for the proof of any fact or contention.
Besides, some commentators said that Prophet Daud's fault here was at his hastiness in judging before hearing the case of other party. When he realized his lapse, he fell down in repentance.
Allah SWT also commands Prophet Daud a.s to use his talents wisely, and judge between the men in truth and justice by not following the whims and caprices of his own soul.
2) The story of Saidina Ali who lost his lance to a Jew.
It has been reported that once Saidina Ali bin Abi Talib had disputed with a Jew regarding the possession of a lance. Both of them claimed for the possession of that particular lance. Syurayh who acted as the judge in this case asked Saidina Ali to produce his witness. Saidina Ali the produced his son, Hassan ibn Ali as his sole witness to that case. The judge refused to accept Hassan as a witness to his claimed since Hassan was his own son and could not be a competent witness. He asked Saidina Ali to come out with the other witness but he failed to do so. His failure to bring the other witness had rendered the judge to give the judgment in favour of the Jew. This judgment however made sense to the Jew whereas he realized the fact on the fairness of the administration of justice in Islam. He then converted to Islam and admitted that he had lied in his testimony in that case. He then returned back the lance to Saidina Ali but Saidina Ali reluctant to take it back. Moreover, he gave the Jew a horse as a gift for him to use it in war. What we could see in this case, Saidina Ali fully respected the judgment given by the judge in a proper way according to the law and he won't question it although he knew that he was on the right side. He accepted his fault for being failure to bring a witness to his case to support his claim since he had the only witness to his claim that is his own son.
In this narration, Syuraih refused to accept the single testimony of a single witness that is the testimony of Saidina Ali. Therefore, he asked Saidina Ali to produce another witness as corroboration. However, when Saidina Ali brings his own son to corroborate his testimony, the judge refused to accept his testimony because he is not competent. Because of this ground, the judge rejected Saidina Ali's claim. This shows that the judge refused to accept the testimony of one single witness unless corroborated by oral evidence of a competent witness. In this case, Hassan bin Ali is not competent witness because of the blood relation. Actually, it is not the issue of number of witnesses but the issue of the credibility of his witness who was his own son. The majority of the jurists with the exception of some Shafiis argue that the testimony of the major and minor branches of families for one another is not admissible. It is based on the hadith of the Holy Prophet (PBUH) who said:
"The testimony of a deceitful man or woman is not admissible, not of a man who has enmity with his brother, not a slave who attributes his freedom to another person, not of the servant of a family for the member of that family"
According to a narration from Imam Ahmad the testimony of the major and minor branches of families like father for son or son for father is admissible in marriage, divorce, qisas and property if they are credible and their testimony is otherwise authentic and satisfactory. This is the opinion of Hazrat Umar and it has been related from Qadhi Shuraih and this was adopted by Umar bin Abdul Azizi, Abu Sore and Muzani.
This view is supported by verse 4:135 which is reproduced as under:
"O ye who believe! Stand out firmly for justice, as witnesses to God, even as against yourselves, or your parents, or your kin.."
Abu Ubaidah said: "According to Hazrat Umar the testimony of father for his son, son for his father, and brother for his brother is admissible provided they are credible. There are not two opinions of Umar in this matter. He has only rejected such testimony when they are blamed and are not credible.
Ibn al-Qayyim writes: "There is nothing verses in the Holy Quran that rejects the testimony of near relatives for each other". It is supported by the judgment of Hazrat Ali, Qhadi Shuraih, Umar Ibn Abdul Aziz and Abu Bakar Ibn Muhammad Ibn Amar Ibn Hazam. It is based on the principle of Shariah that all Muslims are credible for one another. Actually such testimonies became doubtful when the people started giving up the requirements of justice and they started giving preference to the relations than to the justice. But this does not mean that it is an established rule of judiciary in Shariah. However, if the testimony of the relative is based on the relation and not on justice, his testimony will not be admissible. This is left to the Qhadi to look into the testimony of the relatives and differentiate between the one based on justice and the one based on relation and accept the first and reject the second.
According to some Malikis if father and his on testified in a case they will be considered one witness. But according to Sahnun Muttarif, Ibn Al-Farhun and Ibn al-Asim among Malikis they will be considered two witnesses.
According to Imam Abu Hanifah, Imam Malik and the preferred view of Imam Ahmad the testimony of spouses for or against each other is not admissible. But according to Imam Shafii it is admissible.
The evidence (bayyinah) of any relative other than testimony is admissible for and against other relative.
3) Hadith reported by Ummu Salamah: "Allah Messenger (PBUH) said: "You bring me for (judgment) your disputes, some of you perhaps being more eloquent in their plea than others, so I give judgment on their behalf according to what I hear from them. (Bear in mind, in my judgment) if I slice off anything from him the right of his brother, he should not accept that, for I sliced off for him a portion from hell".
This hadith lays down some principles in giving a judgment:
i) All the parties in any dispute ought to be given the right to be heard.
ii) Prohibition of committing perjury.
iii) As a proof that testimony of one single witness is sufficient to prove a case provided that the right to be heard has been given to both parties in dispute.
4) Khalifah Umar Ibn Abd.Aziz, advised some judges by saying, "If before an advisory who I had been appointed come a man with blind eyes do not rule until the other party attest, from perhaps the latter has been blinded in both eyes."
5) The Prophet said to Saidina Ali when he appointed him as governor of Yemen: " O Ali!People will appeal to you for justice, if a man come to you for arbitration, do not rule before you have similarly heard from the other. It is more proper to justice to become evidence to you and for you to know who is right".
All the verses of the Holy Qur'an, the hadith of the Prophet (PBUH) and also the practice of the sahabah come out with the principle that before giving any judgment, a judge must give the parties in dispute the opportunity to exercise their right to be heard so that justice would be seen to be done.
COMPARISON WITH SECTION 134 OF THE EVIDENCE ACT 1950
In short, the principles under the Islamic Law are that:
1) Justice is an Islamic Ideal under all circumstances and at all times. It is the high standard of requirement in delivering judgment.
2) Based on the verses of the Holy Qur'an, ahadith of the Prophet (PBUH) and the practice of the companions, it shows that the importance of giving the right to be heard to all the parties in dispute. It also proves that under the Islamic Law, the requirement of certain numbers of witnesses is not the ultimate point in delivering a judgment.
3) No particular number of witnesses as general requirement for a judge to deliver his judgment.
It is important to note that we should not doubt on the one of the function of the hadith of the Holy Prophet (PBUH) that is to explain the verses of the Qur'an which were revealed in general and as an authority to any rule (hukm) which is never mention in the Qur'an.
THE CONCEPT OF SHAHADAH UNDER THE ISLAMIC LAW
The first source of the proof of any fact in Islamic Law is shahadah(testimony). The word Shahadah (ÔåÇÏÉ) literally means: "information of what one has witnesses or seen or beheld with his eyes, declaration of what one knows, decisive information. It also means to be present".
In Islamic Law, great importance has been given to shahadah (testimony). The Holy Quran states:
"O ye who believe!Stand out firmly for God, as witnesses to fair dealing, and let not the hatred of others to make you swerve to wrong and depart from justice"
.
CONDITION FOR THE WITNESS
The 'ulama are divided in the issue of classifying the qualifications of a witness before his testimony could be accepted. The conditions for a witness are divided into two categories, i.e. with regards to admissibility and also with regards to the giving of testimony.
a. Admissibility
This is known as shurut al-tahammul or conditions for acceptance of a testimony which must be fulfilled before a person's testimony could be accepted. The conditions are as follows:
i) The witness shall be a sane person when giving testimony.
ii) According to some of the 'ulama, the witness must be a person who is not blind. According to Al-Shafi'i however, this should not be a condition because in some circumstances the need for the witness to understand what his testimony is all about can be served as well by his faculty of hearing.
iii) Age of majority, free from slavery, being a Muslim and a male need not be a condition but is only a condition fro giving testimony.
b. Condition for the Testifying Witness.
The conditions for acceptability of the testimony are as follows:
i) Islam
ii) Sound Mind
iii) Baligh
iv) Just ('Adil)
v) Good Memory(Al-Dabt)
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Corroboration Under English Law and Islamic Law
So, it means, the evidence of the entry in books of account is not a sufficient evidence to support the plaintiff’s claim unless the maker is called or other evidences were produced as corroboration. No decree can be passed on the basis of the entries alone, but there must in addition be some independent evidence of the transaction relation to the entries.
In the case of Sim Siok Eng V PP, Salleh Abbas stated that corroborative evidence to support the claim based on entries in books of account is a mandatory and no liability can be fixed on the other party unless the evidence of the entries in books of account is corroborated. The rational behind the requirement of corroboration is because there is always possibility that the entries in books of account been doctored, tampered and forged.
Under the Islamic law, we can refer to position of document as evidence. According to Islamic law of evidence, the authenticity of a document must be proved before it can be admitted as evidence. The maker or witness in the case where the maker is died must be called to prove the authenticity of the entries in the book of account.
According to Ibn Qayyim, qarinah or circumstantial evidence is the basis for the admissibility of documents as means of proof. If the qarinah is strong the documentary evidence should be accepted and judgement must be given based on such documents but if the qarinah is weak then such evidence is to be rejected. In other words, if there is a person claiming certain right based on entries in books of account as a document, in the absence of other witness to support him, his testimony based on that entries must be supported by circumstantial evidence to ensure the authenticity of those entries in the books of account.
c) Offences Under The Sedition Act 1948
Sedition is the speaking or writing or words that are likely to incite ordinary people to public disorder or insurrection. Sedition is an offence if it is committed with the intention to arousing hatred, contempt, or disaffection against the Sovereign or Her successors, the Government of UK, or either House of Parliament or the administration of justice, encouraging any change of the law by unlawful means or raising discontent among Her Majesty’s subjects or promoting ill-will and hostility between different classes of subjects.
Under the Sedition Act 1948, Section 2 defined “seditious” is used for speech, words, publications or other thing qualifies the act, speech, words, publication or other thing as one having a seditious tendency which is defined under Section 3 of the Act.
Section 6(1) of the Sedition Act 1948 stated that “notwithstanding anything to the contrary contained in the Evidence Act 1950, no person shall be convicted of an offence under section 4 on the uncorroborated testimony of one witness. By this section, corroboration is required as a matter of law because it is clearly provided in Sedition Act 1948.
If any person is alleged to have uttered any seditious words, printed, published, sold, offered for sale, distributed or reproduced any seditious publication or other offences under section 4(1), he cannot be convicted on the evidence of a single witness. In other words, the plaintiff must corroborate his allegation; otherwise, the defendant will be acquitted.
In the case of Lim Guan Eng V PP, the appellant as a member of Parliament for Kota Melaka published 5000 copies of pamphlets which contained the words “ Victim Imprisoned, Criminal Free!” regarding the rape case involving Dato’ Rahim Thamby Chik. He also was alleged to have made a speech in which he said that he was dissatisfied with the law of Malaysia because of the double standard. Such statement is a sedition contrary to Section 4(1)(b) of the Sedition Act 1948. The court had accepted the evidence of two witnesses who had accompanied the complainant to the meeting where the appellant had uttered the seditious speech as corroboration.
In the case of Dato’ Mark Koding V PP, the accused is a member of Parliament and in a speech in Dewan Rakyat in 1978, he proposed the closure of Chinese and Tamil medium schools and restriction of the Chinese and Tamil languages on road signs. He also proposed the amendment of Article 152 of the Federal Constitution if such closure amounts to contravention of such Article. The court held that he is guilty to sedition in breach of Para (b) of Section 3(1) of the Sedition Act 1948. The evidence of the complainant was corroborated by the Chief Editor of Malaysian Hansard and copy of the speech that was admitted by the accused.
CORROBORATION AS A MATTER OF PRACTICE
In some circumstances, the court is ready to accept testimony of a single witness but the corroboration is required because it is a common practice which had been regarded as part of the law. Such requirement for corroboration in those circumstances is not provided under Evidence Act 1950 or in any specific legislation but because of the common practice it is deemed as a law.
The convictions based on uncorroborated evidence of a single witness in these circumstances are legal but not safe and as a consequence it becomes a good ground for appeal and at any time, the conviction can be quashed or set aside by the higher court.
Under this category, it is sufficient for the judge to caution himself as to the danger for accepting the evidence of a single witness. In other words, it is good if there is corroboration in the form of real evidence or circumstantial evidence or documentary evidence or oral evidence etc but in the event when there is no any other evidence to corroborate, corroborative caution is sufficient.
Therefore, if the judge believes the testimony of a single witness in these circumstances, he must state the corroborative caution in the note of evidence. There is no standard form of corroboration caution but as long as it is clear in the note of evidence that the judge had warned himself, the conviction would be legal and safe. There are four circumstances in which corroboration is required as a matter of practice:
a) Sworn Testimony Of A Child
Section 118 of the Evidence Act 1950 stated that all persons who can understand the question put to them and capable of answering the question may be competent and compellable witnesses. Section 133A provides for unsworn testimony of a child where corroboration is required as a matter of law but the law relating to the sworn testimony of a child is still governed by the rule of prudence.
In the case of PP V Mohd Noor bin Abdullah [1992] 1 CLJ 702, K.C Vohrah stated:
“….in the present case that the learned judge rightly exercised her discretion in treating the evidence of this young witness with caution, she had warned herself of the rule of prudence that before an accused can be convicted on the sworn evidence of a child, the sworn evidence must be corroborated by evidence which can reasonably confirm the truthfulness of the child’s testimony”.
The reason why sworn evidence of a child still needs corroboration is simply because children cannot differentiate between reality and fantasy. In the case of Chao Chong & Ors V PP [1960] MLJ 238, Thomson CJ stated that:
“ …there is always a 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”.
Azmi LP in the case of Loo Chuan Huat V PP had referredto the case of Reg V Campbell where Lord Goddard CJ said that corroboration in the case of sworn evidence of a child is not as a matter of law but the jury must be warned that there is a risk in acting on the uncorroborated evidence of child of tender years.
In the case of Tham Kai Yau & Ors V PP, Raja Azlan Shah held that the judge should advise a jury to pay particular attention to or to scrutinize with special case, the evidence of young children because of their tendencies to invent and distort.
If the judge believes the testimony, he should warned himself as to the danger in accepting such evidence and must state it in the note of evidence to render his judgement which is based on the testimony of the child as legal and safe.
b) Evidence Of An Accomplice
Section 133 of the Evidence Act 1950 provides that n accomplice is a competent witness under section 118 and conviction which is solely based on uncorroborated testimony of a single witness who is n accomplice is legal. Section 114(b) stated that testimony of an accomplice is unworthy of credit unless corroborated in material particulars. Both sections 133 and 114(b) must be read together as was held in the case of R V Lim Yam Hong, the court in that case also refer to the case of R V Baskerville where the court held that “it has long been a rule of practice in Common Law for the judge to warn the jury of the danger a prisoner on the uncorroborated testimony of n accomplice ….. this court has held that in the absence of such warning by the judge, the conviction must be quashed”.
In defining what is accomplice, Buhagiar J in the case of Re Soo Leot referred to the case of Davies V PP where the House Of Lords held a person is considered as accomplice if he is participles criminis in respect of the actual crime charged, receiver of a stolen property and where a person has been charged with a specific offences and evidence of other similar offences by him has been admitted as proving system and intent and negativing accident, and if the evidence of them were given by a parties to them, the evidence should be corroborated by corroborative caution.
The principle reason for holding accomplice evidence to be untrustworthy is because n accomplice is likely to swear falsely in order to shift the guilt from himself, because an accomplice being a participator in crime and consequently immoral person and lastly because an accomplice gives evidences under the promise of a pardon or in the expectation of an implied pardon. However, the caution is only required when the accomplice becomes prosecution witness as was held in the case of Daud bin Awang Ngah V PP.
Agent provocateur is not an accompliceand thus does not required corroboration as was held in the case of Teja Singh & Anor V PP. In the latest appeal case of Dato’ Seri Anwar Ibrahim, Azizan was considered as accomplice and not a victim of sexual offence on the ground that that he had been alleged to had been sodomised for 15 times and there was no any action taken by him in making a complaint to the police etc which shows that indeed he is an accomplice and not a victim. Therefore, his testimony must be corroborated, otherwise it would be rejected. In the case, the Federal Court held that his testimony should be rejected because he filed to corroborate his testimony.
Under the Islamic law, an accused cannot at the same time become prosecution witness because the nature of prosecution is completely opposed to the nature of the defence. For that the testimony of an accomplice against the other co-accused should not be accepted because he actually had given such evidence against himself.
C) Victim of sexual offences
Our law has followed the English law on this matter. It provides that the court must concern to caution themselves with a guideline of caution and prudence in cases of sexual offences.
The testimony by the victim of sexual offence is fall under the exception to the general rule because if we look at the nature of this act, the suspect and the victim themselves are the participators to the crime.
A single witness is unreliable in the case involving sexual offences because of its nature mentioned earlier. However, under this exception, the conviction is legal, but not safe. The judge must always caution himself before convicting the accused person based on testimony of one single witness.Therefore the caution here would be the corroboration to the case. It is important because in such situation, it is easy to allege anybody committing sexual offences, but it is difficult and hard for him to rebut the crime alleged.
In Aziz bin Muhamad Din v. PP (1996)5 MLJ 473 and PP v. Mohd. Terang bin Amit (1999) 1 MLJ 154, the court has affirmed that in the case where a child give a testimony in cases involving sexual offences, such testimony should be corroborated by way of corroborative caution as a matter of practice.
Beside that, the reason why this crime fall under the exception is the victim had embarrassed the accused in society. If the court can rely solely to one witness, there is a possibility of interestedness, suspicious matter or conspiracy such of this case. The court must guard themselves from the undue influence of the sympathy on her behalf which the accusation is apt to excite.
The victim is an accomplice in a sexual offence if she was a voluntary partner in that sexual intercourse. Corroboration is needed to assist the testimony of the victim not only if the sexual relationship is done voluntarily but also in case of rape.
d) Evidence of Identification
In some circumstances, the prosecution would depend on identification evidence to assist their allegation. They would refer to it solely (wholly) or substantially on identification evidence, and this evidence were given by one or more witnesses.
In such circumstances, the judge must always apply the rule of Turnbull Guideline. This rule was initially raised out based on the case R v Turnbull (1977) QB 224. The jury also must be directed to approach that evidence with caution. It means that they can act upon it as it is not illegal to do so, but must be corroborated with caution.
It is important for the judge to warn the jury about the dangers of identification evidence. In identifying the suspect, the witness ability should be tested without showing to him the suspect or his photograph or his personal data.It is important to do so to in determining the witness’ truthfulness.
In our law there is no more jury system. The judge should state the corroborative caution in his notes of evidence when he accept the evidence of the identification based on testimony of a single witness simply because an honest witness may become a mistaken witness.
POSITION UNDER ISLAMIC LAW OF EVIDENCE
Islam and Government Administration.
Whoever has taste and comprehension of Islamic Law, an understanding of its perfection, its ensuring all the benefits of mankind here and in the hereafter and its perfect justice to the extent that no justice on earth is above its justice and no benefit surpasses its benefit,-whoever knows all that, knows very well that fair administration is part of Islamic Law, and one of its components. Whoever has comprehensive knowledge of the aims and purposes of Islamic Law does not need any other administration at all.
Therefore, administration is of two kinds: oppressive administration which Islam prohibits and just administration which helps the oppressed person to gain his right from the dissolute oppressor which is part of Islamic Law. This is known by some and ignored by others.
THE ISLAMIC ADMINISTRATION
Ibn Aqeel said in Al-Funoon: The practice of Islamic administration of justice in the country has been shown to be firm. No Imam disregards relying on it. If a scholar from Shafi'ee Schooll said: No Islamic administration of justice except in matter which agrees with Islamic Law.
Ibn Aqeel said: The Islamic administration of justice is an action in which the people would be close to righteousness and away from mischief, even if the Prophet (PBUH) did not decide precisely what was to be done, nor had revelation been given about it (this is true).
This is a very sensitive area, in which many people have mistakes, some of them have misused it thinking that they are doing good for Islam therefore they freeze the laws of Allah (SWT) and they made people forfeit their rights. As a result they made Islam unable to fulfill the needs of the people.
Another group was very easy in this matter, they justified what contradicted legislation of Allah (SWT) and His Messenger.
Needless to say, both groups were wrong, since Allah (SWT) has sent His Messenger to establish on earth, and whenever justice appeared, Islam will b there. Allah (SWT) did not restrict the manner of implementing justice. Hence whatever can help implement justice, it is from Islam.
Nobody can say that the just administration conflicts with Islamic Law. Instead it is in accordance with Islam indeed it is one of its components. We are calling it the administration of justice to follow your idiom. In fact it is the justice of Allah (SWT) and His Messenger. This has been proven by the signs and indicators.
For instance, the Prophet (PBUH) imprisoned somebody based (only) on an accusation. The he punished another accused when there were suspicious signs on him. Therefore, if anyone (who is in charge) is going to free every suspect saying that He cannot imprison him unless there are two witnesses, even though (the one who is in charge) knows that the suspect is very well known for his mischief and theft, his statement would contradict the Islamic administration of justice.
Also the Prophet (PBUH) ordered the drunkard who drunk alcohol for the third time and fourth time to be killed and he did not abrogate that nor did he make it a fixed punishment which has to be inflicted, but he left it up to the Imam according to what is best for society. That is why Umar r.a increased the punishment for intoxication from forty lashes and he banished the accused.
What we can say is that, the most important thing is that the implementation of justice itself as the utmost point that we should ponder upon, as there's maxim which says that 'Justice must seen to be done, not seen to be done'. It's upon the discretion and the way of the judge himself on how he or she could do justice in his or her judgment.
There are many verses from the Qur'an which emphasize about the important of doing justice. Among the verses are:
"God doth command you to render back your trusts to those to whom they are due; And when ye judge between man and man, that ye judge with justice: Verily how excellent is the teaching which He giveth you! For God is He Who heareth and seeth all things".
"The term justice is also recognized in Hadith and the said of the Companions of the Prophet as well. In one Hadith, the Prophet S.A.W. once said: Whoever has a duty to judge between two Muslims in dispute must exercise fairness in words, gestures and seating positions and never raised his voice to one party and not the other"
Being a divinely revealed law, Islamic Law seeks a number of temporal goals, the most important of which is the pursuit of justice. Both the Holy Quran and the Sunnah of the Holy Prophet (PBUH) repeatedly demand justice and condemn injustice, associating the former with reward and the latter with punishment.
The Islamic Law has laid down great stress on the evidence to prove the facts relevant for the judgment of a court. The Holy Prophet said:
"If the people would be given what they claim (without the evidence), some persons would claim other people's blood and properties, but it is obligatory on the claimant to produce evidence".
Evidence is thus of supreme importance in the administration of justice. Moreover, evidence is a restrainer to false, weak and unsubstantiated claims and complaint.
The Sunnah of the Holy Prophet Muhammad (PBUH) has given supreme importance to the evidence produced in the court of justice. The disputants were given full freedom to present their cases and set forth their points of view. The ultimate reliance for the decision of the case was made on the apparent evidence. The Holy Prophet (PBUH) in a hadith said:
"We have been ordered to decide on the apparent evidence and this Allah Al-Mighty who knows the secrets".
HISTORY OF THE LAW
Umar's letter to Abu Musa Al-Ashari, contained the guidelines for the judge to make any judgment or decision.
Umar b. al-Khattab, the second Claiph, he appointed Abu Darda as a judge with him in Medina, Shurayh as judge in Kufa, Abu Musa al-Ash'ari as a judge in Basrah, and Uthman ibn Qays as judge in Egypt. In appointing Abu Musa, he wrote to him the famous letter that contains all the laws that govern the office of a judge, and is the basis of the administration of justice. He wrote;
"Now the office of the judge is a definite religious duty and generally followed practice. Understand the depositions that are made before you, for it is useless to consider a plea that is not valid. Consider all the people equal before you in your court and in your attention, so that the noble will not expect you to be partial and the humble will not despair of justice of you. The claimant just produce evidence; from the defendant an oath may be exacted. Compromise is permissible among the Muslims, but not any agreement through which something forbidden is permitted, or something permitted is forbidden. If you gave a judgment yesterday, and today, upon reconsideration, you come to correct opinion, you should not hesitate by your first judgment from retracting; for justice is primeval, and it is better to retract than to persist in worthlessness. Use your brain about matters that perplex you and to which neither the Quran nor the Sunnah seems to apply. Study similar cases and evaluate the situation through analogy. If a person brings a claim which he may or may not able to prove, set a time limit for him. If he brings proof within the time limit, you should allow his claim; otherwise you are permitted to give judgment against him. This is the better way to forestall or clear up any possible doubt. All Muslims are acceptable as witnesses against each other, except such as have received punishment provided for by the religious law, such as are proved to have given false witness, and such as are suspected of partiality on the ground of client status or relationship, for God, praised be He, forgives because of oath and postpones punishment in face of evidence. Avoid fatigue and weariness and annoyance at the litigants. For establishing justice, God will grant you a rich reward and give you a good reputation. Farewel.
BURDEN OF PROOF
Hazrat Umar, in the letter to Abu Musa al-Asha'ri, writes: "The burden of proof in on the claimant and the defendant may be put on oath". On the other hand, Hazrat Ali, in the letter to Ashtar al-Nakha'I about the conduct and qualities of a Qhadi(Judge), writes:
"Then select (that one who seems to you) the best of the people for the post of Qhadi: One with whom the matters do
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Corroboration Under English Law and Islamic Law
PART ONE:
QUESTION:
"Witness is Weighed Not Counted"
Emphasis is on the quality rather than quantity of the witness. Therefore, as the general rule of court's decision can properly be based on the amount of evidence which should be called or the proper weight to attach it.
- Do you agree and why? Explain with decided cases.
- Would your view be different under Islamic Law?
INTRODUCTION
In law, there is a general rule which is based on a unique maxim. Latin words pronounce it as:" Testes Ponderantor Non Numerantor" which means that "Witness is Weighed Not Counted".
If there is any case arises and there is only one witness who has heard or saw or known about the important fact, then the general rule said that his testimony could be reliable and his testimony is admissible in law. The court may act on the testimony of a single witness though the evidence given by him is uncorroborated.
According to Section 134 of Evidence Act 1950, it is stated that the law does not provide any particular rule for the number of witnesses in proving any fact. It could be understood that the law does not stipulate any specific number of witnesses in giving his testimony to prove any fact. In other words, it means that the credibility of the witness is not based on numerous witnesses and we can accept any evidence given by a single witness.
The reason is because in certain circumstances, only one witness would give undoubted evidence compare to many other witnesses in a case. The judge must always concern on this as the most important thing is the purest and truthfulness of any evidence given to the court.
As far as the maxim is concerned, it is clear and unambiguous fact that the best evidence is not based on quantity of witnesses. It would only be admitted by the judge for its best quality and by relying on the witness's character as a competent and reliable person.
We may look at some cases for a further elaboration on the meaning of the maxim "Testes Ponderator Non Numerantor". For instance, in MGG Pillai v. Tan Sri Dato' Vincent Tan . It was held that no necessity for the respondent to call other witnesses and he may take the risk by relying only on one single witness in proving his case. Furthermore, the law in Malaysia provides that no particular number of
witness is required to prove any fact.
Therefore, this case shows that a credibility of the witness is more important than a large number of witnesses to testify the case.
Another case is Vadivelu Thevar v. State of Madras (1957) AIR SC 614. In this case, the court referred to Section 134 of Indian Evidence 1872 (in pari materia with Section 134 of the Evidence Act 1950) in deciding the case. The judge has concluded that if there is only one witness to prove the case, the court can rely on it. The ground is that evidence of each and every witness is to be judged on its own merits.
So here, as a general rule, one single witness' evidence is admissible and we shall discuss further details about it and also its exception.
EXPLANATION TO THE GENERAL RULE
The general rule said that a single witness' testimony can be accepted. As we had mentioned earlier, witness is weighed and not counted. The wordings of the maxim are unambiguous. It applies to both civil and criminal cases. Acceptability of evidence depends on its weigh and not to its numerical evidence.
The number of witnesses is depending on the fact of the case. The court has the full discretion and power to decide on how many witnesses for that case. Besides, there is no specific law which provides a hard and fast rule on this matter. Because of no prohibition and requirement as to how many witnesses required in a case, most of the judges take the risk to give their decision based on one single witness where he speaks it out directly.
Generally, it can be said that in a case where the oral evidence is wholly based on the testimony of one single witness, the court may or may acquit the accused based on one single witness. However, if in the case where the evidence is based on neither wholly reliable nor wholly unreliable oral testimony, the court has to look for corroboration in material particulars by reliable testimony.
The Court must consider the quality and not the quantity of evidence in proving or disproving fact. The testimony of one single honest and truthful witness would be admissible in cases in which if the court not to do so, then a serious crime (like a secret murderer would go unpunished). This means that the evidence would render the accused to be punished based on one single witness.
In all cases the weight of the evidence must be observed based on the maxim. The evidence given must be weighed carefully. The court may act upon such testimony in line with the general rule. However, in exceptional cases, court may convict the accused and act based on one witness' testimony, but corroboration is needed. This exception will be discussed particularly in another sub topic in this assignment later.
The general rule is applicable when the corroboration is not necessary in any case where there is no any other witness to give other evidence.
As mentioned before, neither the number of witnesses, nor the quantity of evidence is material, but the priority under the general rule is the quality of the witness and indirectly his evidence.
In practice, the court may and can give decision by relying solely on one reliable, competent and credible witness. The law does not want to over-burden the record by both parties’ solicitors in producing the proof before the court. However, a judge in his professional manner would decide it in a best way by cautioning himself of the truthfulness and falseness of that testimony.
Such evidence must be clear, convincing and consistent. In the case of inexistence of any other evidence, the common practice is that the judges may and can rely on the evidence of one single witness in deciding and giving judgment. The court may accept or reject the evidence of one witness if it was found that there is interest or conspiracy as quality is the priority.
In Adel Muhammad El Dabbah v. AG of Palestine , the prosecution has a discretion in determining what witness and how many witness to be called in testifying the case and the court would not interfere provided that there is no oblique motive. It shows that the law permits the prosecution to determine who to be their witnesses and also to the quantity of the witnesses.
The testimony of one single witness is accepted, not only because of lack of suspicious but also because he can be relied upon by the court with a full confidence. The need for corroboration may arise not because the evidence is of an interested person but because the evidence of a party in such as does not inspire confidence. Another important point is that a single witness' testimony is to be looked at not only for conviction but also to assist the accused in proving that he is innocent for that offence.
There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if court were to insist on plurality of witnesses in prove any fact, there will be indirectly encouraging subornation of witnesses.
The testimony by one single witness would be sufficient to convict the accused by relying upon the prosecution's strong evidence which is commonly believed by law. There is no bar for convicting any accused person on the evidence of sole witness, if the evidence is solely trustworthy. His good character is important here because his testimony would be the basis evidence for judgement.
REASONS WHY ONE WITNESS IS SUFFICENT
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. It is because in certain circumstances, it is because a single witness may be strong enough to prove a case against an accused beyond any reasonable doubt. For instances in case of secret murder, sometimes it is so difficult to find more than a single witness.
, As we mentioned before, the quality is more important than the quantity of a witness. If the evidence of one witness is a strong probative force, his testimony would give a great effect to convict the accused. As in Dato’ Mokhtar Hashim v. PP, the judge relied upon only one single reliable witness because the witness was having a strong relevant facts to the case.
Another reason is that the testimony of one single credible witness is more reliable compare to testimony of incredible witnesses. Upon relying on his testimony, the court must know to justify the truthfulness and falsehood from his testimony. Even there are many witnesses testify in the court, their credibility is challengeable and arguable by the court.
The legislature does not require the plurality of witnesses; otherwise in any serious crime the accused would go unpunished. For instance, in secret murder case, even one single witness sometimes impossible to be obtained. This situation has been arising till now.
It is concluded that one single witness who gives his testimony is undoubtedly accepted by our law. There is no rule in our law saying that the uncorroborated testimony of a witness cannot be accepted.
CASES IN WHICH THE COURT HAS ACCEPTED THE TESTIMONY OF ONE SINGLE WITNESS
In this assignment, we shall illustrate some cases where the court applied the general rule.
Khaw Cheng Bok v. Khaw Cheng Poon
In this case, it was held that the testimony of one single witness, if believed, is sufficient to establish the fact. The judge also approved the maxim “testes ponderantur non numerantur”
From this case, it shows that the court can decide the case by referring solely on one single witness. If the evidence is sufficient in proving the fact of the case, then the testimony can be a good ground to convict the accused.
What is important is that the quality of the evidence or testimony and not the quantity of the evidence.
MGG Pillai v. Tan Sri Dato' Vincent Tan
The respondent was the only witness called to prove his case. He took a high risk for not calling other person to prove his general damages even the court gave him that opportunity. As there was no necessity to rely on any other witness, the judgment is given by observing the fact given by that single witness.
The judge had referred to Section 134 of the Evidence Act 1950 which saying that no particular number of witnesses is required to prove the fact. This case show that general rule is applicable in Malaysian Law and if the one single witness' testimony could show the honesty and truthfulness of his evidence, the court may and can act by relying on it.
Vadivellu Thevar v. State of Madras .
The court referred to Section 134 of Indian Evidence Act ( in pari materia with Section 134 of Our Evidence Act) and held that there is no bar for convicting any accused person on the evidence of sole witness, if the evidence is solely trustworthy.
It was held that the courts accept the general rule to rely on one single witness though uncorroborated. One credible witness will outweighed the testimony of other suspicious evidence. The court stated that in the absence of any exceptional circumstances, it is a duty of the court to convict the accused based on that reliable witness, though without any corroboration.
In determining whether corroboration is needed or not in any case, would depend on the fact itself and judicial discretion can be exercised in certain circumstances.
The court also confirmed the maxim and for the sake of justice one single witness is accepted provided that he is an innocent, reliable and competent person to be relied upon in testifying the truth.
Dato’ Mokhtar Hashim v. PP
This is a secret murder case. In this case the judge also approved the general rule. The judgment is given based solely on the evidence of one witness. The court has rejected the other witnesses' testimonies.
The ground in doing so is that the testimony given by the one witness is more reliable and more believable by the court. In this case, the court has also referred to the maxim “testes ponderantur non numerantur”.
As the earlier case, this case followed the general principle in accepting one single witness' evidence.
Ram August v. Bindeshwari
It was held that the evidence of every witness is to be judged on its own merits. If there is any evidence, which is, credited the accused, the evidence is accepted though it is given by one single witness.
It means that the court accepted the general rule to be applied in this case though the testimony given is without any other corroboration. The ground is because the evidence has its own merits. If the testimony is believable, eventhough it is based on a single witness, it is admissible evidence.
EXCEPTION
The law provides that a testimony of one single witness may be accepted without any corroboration. However, in certain exceptional cases, the court is not willing to convict the accused person or to uphold the plaintiff's claim based on uncorroborated testimony of a single witness. The judge himself must from time to time look at some guidelines of circumspection to consider whether the evidence can be accepted with or without any corroboration or to have a caution on the solely one witness. In such of these cases, the court must apply independent corroboration before recording the conviction.
It is required to have corroboration as a useful guideline and to secure the quality of the evidence. The corroboration can be categorized into two: corroboration as a matter of law and as matter of practice. When corroboration is required as a matter of law, conviction which is based on uncorroborated testimony is illegal, meanwhile if it is required as matter of practice, such conviction is not illegal but not safe and can be a good ground for appeal.
CORROBORATION
Unless the case before a judge falls under any exception that we will discuss later, the general rule is that no corroboration is required and he can accept the testimony of a single witness and convict the accused person based on it but, he may require corroboration if the evidence is open to doubt or suspicion. All that the court is concerned with is the quality and not quantity of the evidence.
Corroboration is defined as independent evidence which implicates a person accused of a crime by connecting him with it or evidence which confirms in some material particular not only that the crime has been committed, but also that the accused committed it.
Corroboration can be in the form of circumstantial evidence, real evidence, oral evidence, documentary evidence etc to support the evidence which is already in. Corroboration is not to support a weak case but to satisfy the judge and to eliminate any doubt or suspicion before he gives decision based on the strong evidence of a single witness. If it is already a weak case, corroboration is insufficient because the evidence already in is not of high value.
Corroboration is to strengthen the weight of the evidence of a single witness and to enhance the quality of the evidence to ensure legal or safe conviction of an accused person. Corroboration is needed in the cases where the nature of the testimony of the single witness itself requires corroboration as a rule of prudence or it is insisted upon by statute.
In the event when corroboration is insisted as a matter of law or required by certain statutes, conviction on uncorroborated evidence of a single witness though credible would be illegal and the conviction can be quashed because the requirement is mandatory. In the case of PP V Sanassi, Sharma J held that the Evidence Act 1950 is exhaustive only what is contained in the Act itself and to other matters which can be found in other statutes, the Evidence Act is not exhaustive. Therefore, the requirement in other statutes prevails over Evidence Act 1950.
In certain circumstances, corroboration is required as a matter of prudence that hardened into the rule of law. It is a common practice that the court will caution itself before accepting the evidence of a single witness though this is not provided by any statute or law. A conviction on uncorroborated evidence of a single witness, where the corroboration is needed as a matter of practice is legal but not safe and can be quashed.
In the case of The King V Baskerville, Lord Reading stated that “evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime…. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at Common Law or within that class of offences for which corroboration is required by statute”. The definition had been referred in some local cases such as Thavanathan V PP and Aziz Muhamad Din V PP.
1) CORROBORATION AS A MATTER OF LAW
a) Unsworn Testimony Of A Child Under Section 133A Of The Evidence Act
By virtue of section 133A of the Evidence Act 1950, a child of tender years may give unsworn testimony if the court finds that he possesses sufficient intelligent to understand the questions put forward by the counsels and he is capable of answering the question. The proviso mentioned that the court shall not based his decision solely on the unsworn testimony of the child unless it is corroborated. The child who is capable of understanding the question put to them and capable of giving answer is competent witness under section 118 of the Act. Nevertheless, he is not required to take oath because he is deemed incapable in appreciating the seriousness of the effect of giving oath.
In the case of DPP V Hester, Lord Pearson stated that “an accused person is not to be convicted on unsworn evidence unless it is corroborated by some other material evidence in support thereof implicating the accused”.
In the case of Sidek Bin Ludan V PP, Abdul Malik Ishak J, stated that “a conviction cannot stand on the uncorroborated evidence of an unsworn child witness and it is insufficient for the trial court to merely administer a warning on the dangers of so convicting …. that the evidence of an unsworn child witness shall be corroborated. The same was held in the case of Yusaini V PP and PP V Mohd. Terang Bin Amit.
Under the Islamic law, generally the testimony of a child not reaching the age of majority should not be accepted because all ulama’ agreed that baligh should be one of the conditions for someone’s testimony to be accepted. Nonetheless, in certain circumstances, testimony of a child not reaching the age of majority who is sane can be accepted because acceptance of a testimony also depends on the state of mind of the witness who must be able to understand or remember what he had seen or heard.
For example, Maliki accept testimony of a child for blood related offences in emergency cases provided that he is mumayyiz at that time i.e he can differentiate between good and bad and he was present at the occasion and there was no other adult witnessing the event. The Hanbalis also accept such testimony in injury cases on the condition that he must give testimony before leaving the scene of the incident because such circumstances will show that the child is speaking the truth and still remember the event well. Ahmad Ibn Hanbal relates that such testimony of a child will be accepted if the child is above 10 years old. We can conclude that the judge look at the circumstantial evidence such as his presence at the place of incident, blood relation etc as a form of corroboration before the decision is passed. As to the question whether in Islam a judgement can be passed based on corroborated testimony of a single child witness, we postpone the discussion to the last part of this assignment.
b) Entries In The Books Of Account Under Section 34 Of The Evidence Act
Under the English Law and by virtue of section 34 of the Evidence Act, entries in a person’s books of account in support of his claim were not generally admissible in his favour without proof that the writer was dead and that it was his duty to make the entries on the principle that a man ought not be allowed to make evidence for himself by writing things behind the back of others.
So, it means, the evidence of the entry in books of account is not a sufficient evidence to support the plaintiff’s claim unless the maker is called or other evidences were produced as corroboration. No decree can be passed on the basis of the entries alone, but there must in addition be some independent evidence of the transaction relation to the entries. <P class=MsoNormal style="MARGIN: 0in 0in 0pt 0.25in; TEXT-INDENT: 0.25in; LINE-HEIGHT: 200%; TEXT-ALIGN: j
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Sep 3, 2004
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN JENAYAH NO. 05-6-2003 (W)
ANTARA
DATO’ SERI ANWAR IBRAHIM --- Perayu
Lawan
PENDAKWA RAYA --- Responden
DAN
RAYUAN JENAYAH NO. 05-7-2003 (W)
SUKMA DARMAWAN SASMITAAT MADJA --- Perayu
Lawan
PENDAKWA RAYA --- Responden
Coram :
Abdul Hamid bin Haji Mohamad, HMP
Rahmah bt. Hussain, HMP
Tengku Baharudin Shah bin Tengku Mahmud, HMR
GROUNDS OF JUDGMENT
On 20 May 2004, at the conclusion of submissions by both learned counsel for the Appellants as well as the learned Attorney General for the Respondent, we reserved our judgment. This is now my judgment.
Both the Appellants had appealed against their convictions and sentences to the Court of Appeal. In the first appeal the First Appellant appealed against his conviction and sentence on a charge preferred against him for an offence punishable under section 377B of the Penal Code. On conviction he was sentenced to 9 years imprisonment to commence after he has served his first sentence in respect of his conviction under the first trial.
In the second appeal the Second Appellant appealed against the conviction and sentence on two charges preferred against him. The first charge was for an offence punishable under section 109 read with section 377B while the second charge was for an offence punishable under section 377B. He has been sentenced to 6 years imprisonment with 2 strokes of the rotan for the first charge and to 6 years imprisonment and 2 strokes of the rotan for the second charge. The imprisonment terms are to run concurrently.
Their appeals were dismissed by the Court of Appeal. Hence this appeal.
For the purpose of this Judgment, I shall first consider the four (4) main issues raised by the defence namely,
a) the credibility of Azizan bin Abu Bakar
b) Azizan being an accomplice
c) Corroboration of Azizan
d) Voluntariness of the confession of Sukma – the Second Appellant.
a) The credibility of Azizan bin Abu Bakar
As I see it the credibility of Azizan is of paramount consideration, as there can be no dispute that the entire prosecution case hinges on his evidence.
It is contended by the Appellants that Azizan is not a credible witness for the following reasons :
(i) The dates in the charges were suggested/given by the police and not by Azizan.
(ii) Azizan despite being sodomised went back to work for First Appellant’s wife.
(iii) In the earlier trial, Azizan denied being sodomised by the First Appellant.
(iv) Azizan’s credit should have been impeached.
(v) Azizan is totally unreliable and inconsistent in that the trial Judge commented upon him/his evidence.
(vi) Azizan said he brought these allegations in the open “demi maruah dan agama” but he himself was convicted of khalwat.
(vii) Azizan was bribed.
The law relating to the assessment of the credibility of witnesses is well established. As Lord Bridge of Harwich said in Attorney General of Hong Kong v. Wong Muk Ping (1987) AC 501 at p. 510,
“It is a common place of judicial experience that a witness who makes a poor impression in the witness box may be found at the end of the day, when his evidence is considered in the light, of all the other evidence bearing upon the issue, to have been both truthful and accurate. Conversely, the evidence of a witness who first seemed impressive and reliable may at the end of the day have to be rejected. Such experience suggests that it is dangerous to assess the credibility of evidence given by witness in isolation from other evidence in the case which is capable of throwing light on its reliability …..” (Emphasis added).
In Bhojraj v. Sitaram (1936) ALR 60 PC the Privy Council said that the real test for either accepting or rejecting the evidence of a witness is how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits in with the rest of the evidence and the circumstances of the case. The case of Mohd. Ali bin Burut & Ors. v. Public Prosecutor (1995) 2 AC 579 supports the proposition that it is important to bear in mind that in deciding on the guilt or otherwise, a trial court will not usually compartmentalize the evidence. It will make its finding of credibility and reliability in respect of a particular witness against the possibilities, probabilities and certainties emerging from the whole body of the evidence before it.
Furthermore it is trite that every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons not to believe him. In P.P. v. Mohamed Ali (1962) MLJ 257, (at page 258) Thomson C.J said this :
“When a Police witness says something that is not inherently improbable his evidence must in the first instance be accepted.”
And in Balasingam v. P.P. (1959) MLJ 193 (at page 194) Ismail Khan J (as he then was) stated :
“After all there is no legal presumption that an interested witness should not be believed. He is entitled to credence until cogent reasons for disbelief can be advanced in the light of evidence to the contrary and the surrounding circumstances.”
So what happens when there are discrepancies or contradictions in a witness’ testimony? Would that make him less than credible and lead to an outright rejection of his entire testimony? In Chean Siong Guat v. P.P. (1969) 2 MLJ 63 (at pages 63 & 64) Abdul Hamid J. (as he then was) had this to say :
“Discrepancies may, in my view, be found in any case for the simple reason that no two persons can describe the same thing in exactly the same way. Sometimes what may appear to be discrepancies are in reality different ways of describing the same thing, or it may happen that the witnesses who are describing the same thing might have seen it in different ways and at different times and that is how discrepancies are likely to arise. These discrepancies may either be minor or serious discrepancies. Absolute truth is I think beyond human perception and conflicting versions of an incident, even by honest and disinterested witnesses, is a common experience. In weighing the testimony of witnesses, human fallibility in observation, retention and recollection are often recognized by the court. Being a question of fact, what a magistrate need do is to consider the discrepancies and say whether they are minor or serious discrepancies. If, after con-them. On the other hand, if a magistrate finds that the discrepancies do not detract from the value of the testimony of the witness or witnesses, it would then be proper for him to regard the discrepancies as trivial and ignore them. On the other hand, if a magistrate finds that the discrepancies relate to a material point which would seriously affect the value of the testimony of the witness or witnesses, then it would be his duty to weigh the evidence carefully in arriving at the truth.”
And in Pie bin Chin v. P.P. (1985) 1 MLJ 234 (at page 235), Wan Yahya J (as he then was) said :
“Discrepancies are no doubt present in this case, as they do ostensibly appear in most cases in evidence of witnesses for the prosecution as well as the defence. The transcripts of most evidence, when thoroughly tooth-combed by any able lawyer, never failed to yield some form of inconsistencies, discrepancies or contradictions but these do not necessarily render the witness’s entire evidence incredible. It is only when a witness’s evidence on material and obvious matters in the case is so irreconcilable, ambivalent or negational that his whole evidence is to be disregarded.
Forgetfulness and failure to recall exactly certain events, which did not seem to be important to the witness, do not necessarily shake his credibility or render other parts of his story unworthy of belief. Various persons are endowed with varying powers of cognition, attentiveness and perception, so that it is not uncommon for two witnesses to a common event to describe it in slightly differing versions.”
Thus, the fact that there are discrepancies in a witness’ testimony does not straight away make him (in this case Azizan) an unreliable witness and make the whole of his evidence unacceptable.
Having laid down the legal principles with regard to credibility and how discrepancies on a witness are to be treated in assessing credibility, let us now look at what the learned trial Judge had to say on the credibility of Azizan because of the latter’s inconsistent statements as to the date of the commission of the offence. At page 255 (paragraph C) of his Judgment (2001) 3 MLJ 193, he said :
“In his testimony Azizan said he was confused because he was asked about the months of May 1994 and May 1992 repeatedly as stated above. I find as a fact that he was confused. When a witness is confused, it does not mean he was lying. The naked truth is that he could not remember what he had said. I am satisfied he was not lying. In any event, the issue whether he told the police he was sodomized in May 1994 and May 1992 are not the issues in the current charges against both the accused. The issue is whether he was sodomized by both the accused between the months of January and March 1993 at Tivoli Villa. I therefore rule the credit of Azizan is not affected on this score.”
Then, after considering the evidence of Azizan as to the date of the offence in relation to the evidence of the Investigation Officer – SAC-1 Musa, the learned trial Judge said : (at page 255 paragraph 1 to page 256 paragraph A)
“Be that as it may, the evidence of SAC-1 Musa clearly states that Azizan was consistent in his statements on the issue of sodomy although he was not sure of the exact dates. The relevant dates we are concerned with in the present charges are between the months of January and March 1993. Azizan emphatically said in evidence that he was sodomized by both Dato’ Seri Anwar and Sukma at Tivoli Villa between these dates and he gave the reasons for remembering the dates. This evidence was not successfully challenged. It is therefore established on this evidence that Azizan was sodomized by both Dato’ Seri Anwar and Sukma in Tivoli Villa between January to March 1993. Whether he was sodomized in May 1994 or May 1992 is not relevant as these dates are not in issue to be decided in this case. I see no merits on this contention and the credit of Azizan is not affected on this ground.”
Finally on the issue of the credibility of Azizan, the learned Judge made a firm finding in relation to the ingredients of the charges against both Appellants as follows : (page 258, paragraphs D-I)
“…. he is a wholly reliable, credible and truthful witness taking into consideration the whole of his evidence notwithstanding inconsistencies, discrepancies and contradictions which did not detract the weight and truth of his evidence in relation to the ingredients of the charges against both accused.
Azizan has truthfully and without embellishment, distortion or exaggeration in his evidence narrated in minute detail how he was sodomized by Dato’ Seri Anwar and Sukma at the date and place as stated in the charges against both accused.
…. His description and direct experience of being sodomized completely negatives any probability that Azizan was tutored or coached as claimed by the defence counsel. No reasonable person or judge could on the evidence come to any other finding than the firm and unescapable conclusion that both accused sodomized Azizan gaily whetting their appetites at Tivoli Villa. Only persons directly and actively subjected to these acts of sodomy would be able to narrate the details of the whole episode.
I am of the firm view that Azizan was speaking the whole truth when he said in evidence that he was sodomized at Tivoli Villa between the months of January and March 1993 by both accused as stated in the charge. There is no reason why he should come out with such meticulous details describing the preliminaries sex play indulged in by Dato’ Seri Anwar unless this was true. He has nothing to gain whatsoever but stood to lose everything if his evidence was not true as this would affect his self respect and his good name and standing in the eyes of the public and would also bring embarrassment to his family members. Further one cannot conceive that one would fabricate a serious charge of sodomy against the Minister of Finance and Deputy Prime Minister of Malaysia.”
In conclusion he said,
“It cannot be denied that there are discrepancies in Azizan’s testimony. I have considered these discrepancies earlier and had made my finding on them. Apart from that, I do not find any serious discrepancies that would affect Azizan’s credibility or reliability as a witness of truth on the ingredients of the charges against both the accused.”
The learned Judges of the Court of Appeal agreed with the finding of the learned trial Judge when they said : (at p.214 paragraph 106 – (2004) 1 MLJ)
“Surely therefore it would be wrong in law to wholesale reject the evidence of Azizan just because he faltered in few instances in the course of his testimony. Indeed discrepancies found in the testimony of a witness may be evidence of his truthfulness rather than the reverse (see also Dato’ Mokhtar v. Public Prosecutor (supra).”
As to the significance of the date in the charge, the learned trial Judge stated (at page 249) as follows :
“In any event a date in the charge has never been material. In R v. Severo Dossi (1918) 13 Cr App R 158 (quoted in Law Kiat Lang v. P.P (1996) 1 MLJ 252,) Lord Atkin J observed :
‘From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence’.”
And the Judges of the Court of Appeal agreed with the trial Judge by stating that “there are authoritative decisions of our Courts wherein time and date in a charge were held to be immaterial”. They then referred to the case of Hussin bin Sillit v. Public Prosecutor (1988) 2 MLJ 232, where Mohd. Azmi SCJ has this to say at p.236,
“It should be borne in mind that where the charge relates to only one offence, merely amending the date, place or time in the charge would not necessarily constitute amending the offence, and under section 156 of the Criminal Procedure Code no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission ….’ Clearly, each situation must depend on the facts and circumstances of the particular case in determining whether any amendment as to time, date or place affected before or in the course of the trial entails changing the offence with which the accused is charged into an entirely different offence. There is no reason to suppose that every amendment, either before or after commencement of the trial, must necessarily change the occasion in the original charge into an entirely different occasion so as to exclude evidence pertaining to it from being ‘evidence in support of a defence of alibi’.”
The Court of Appeal also expressed its view on the issue of the date in relation to the charges preferred against the appellants and specifically on the issue of alibi. This is what it says : (at page 199 (2004) 1 MLJ 177)
“On the issue of the amendment to the charges in respect of the date alleged in the commission of the offences subsequent to the notice of alibi, we need only to adopt the view expressed by the majority in the Supreme Court of Canada in the case of Regina v. P (MB) 89 CCC (3d) 289; [1994] CCC LEXIS 2454; 113 DLR (4th) 461, where Lamer CJ opined thus (at p.297) :
“The fact that an accused may have an alibi for the period (or part of the period) described in the indictment does not automatically ‘freeze’ the dates specified in the indictment. That is to say, there is no vested right to a given alibi. Alibi evidence must respond to the case as presented by the Crown and not the other way around”.
Now, in sexual offences, as in this case, the essential ingredients are the sexual act and the identity of the offender. Therefore, it is incorrect to say that the date is a vital ingredient of the charge. In the case of R v. Richard Beynon (1999) EWCA Crim. 1172, where the charges framed against the accused did not have the time and place but only the breath of the period when the indecent assault was alleged to have taken place, the Court of Criminal Appeal of England had this to say :
“We are not saying that that is uncommon; indeed it is very common in allegations and charges of this sort.”
And our own Federal Court in the case of Ku Lip See v. Public Prosecutor (1982) 1 MLJ 194, had said this: (at p.196 – paragraph I)
“With reference to question (1), we are constrained to observe that although the charge has not stated exactly when the offence was committed during the months of May and June 1978 it has nevertheless specifically defined the time and place sufficiently to enable the applicant to answer the charge.”
Furthermore, the learned trial Judge clearly said in his judgment that the evidence of Azizan that he was sodomized between the dates specified in the charge was not successfully challenged. Thus in order to reject this finding of fact by the trial Judge there must be strong and compelling reason to do so. Particularly so, as this finding of fact has been accepted by the Court of Appeal.
It is settled law that very rarely does a higher appellate court interfere with concurrent findings of fact by the courts below. Such view was expressed by the Privy Council in the case of Sattar Buxoo and anor. v. The Queen (1988) 1 WLR 820 PC, an appeal from Mauritius, where it is said at p.824,
“In the present case, however, it is plain that the circumstances of the appeal take it far outside any possible application of the principles in question. No point of law is involved. The only issue before the Intermediate Court and the Supreme Court was whether on the evidence led the defendants had been identified as being among the persons who carried out the serious assault which was undoubtedly perpetrated on the victim Fockeena. The Intermediate Court found that they had been and the finding was upheld by the Supreme Court. The Board could never consider it right to interfere with a concurrent finding of fact of that nature.” (Emphasis added).
And nearer home, that seems to be also the approach of this court as expressed in the recent case of Sri Kelang-Kota – Rakan Engineering J.V. Sdn. Bhd. & Anor. v. Arab Malaysian Prima Realty Sdn. Bhd. & Ors. (2003) 3 MLJ 257 at p.273 where Abdul Malek Ahmad FCJ (as he then was) said,
“In our view, looking at the above cited passages from the judgment of the Court of Appeal and having regard to the fact that the issue that was decided by the Court of Appeal and the High Court was clearly one of fact, there is obviously no merit in the contention of the appellants as found in the grounds of appeal that the Court of Appeal erred in law in deciding as they did. Even assuming for a moment that the Court of Appeal erred in the application of the principles of law to the particular set of facts in the instant appeal, there is no room for this court to reverse the concurrent finding of fact made by the High Court and the Court of Appeal that the appellants were the guilty party in breach of the agreements since it is trite that the appellate court is not prepared to interfere with the concurrent finding of facts made by the courts below as held by this court in Lim Geak Liang v. East West UMI Insurance Bhd. (1997) 3 MLJ 517 at pg. 523.” (Emphasis added).
To sum up, in view of the abovesaid reasons and the authorities referred to earlier, I find myself reluctant to interfere with the finding of fact by both the courts below regarding the credibility of Azizan.
b) Azizan being an accomplice
Section 133 of the Evidence Act 1950, clearly provides that :
“An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.”
To my mind the learned trial Judge has dealt with the issue of accomplice correctly and quite admirably when he said : [at pp. 249 – 250 (2003) 3 MLJ]
“An accomplice is defined in Wharton’s Law Lexicon as ‘a guilty associate in crime’. In Regina v. Mullins 3 Cox CC 526,Maule J described an accomplice as a person who has concurred ‘fully in the criminal designs of another for a certain time, until getting alarmed or for some other cause, they turned upon their former associates and gave information against them. These persons may be truly called accomplice’.
When the issue whether a witness is an accomplice is raised ‘the court must study the evidence and make the necessary finding. There can be no rule of law or evidence that a witness is automatically an accomplice just because of his actus reus. The whole idea is completely contrary to the basic concept of criminal liability’ – per Salleh Abas CJ (as he then was) in Ng Kok Lian Anor v. PP [1983] 2 MLJ 379. In deciding whether a witness is an accomplice the court has therefore to consider the evidence that is before it. Bearing in mind this principle can it be said that Azizan is an accomplice? Does the evidence show that Azizan is an accomplice? In his evidence he said in cross examination that he told the police he was sodomized between the months of January and March 1993 although he cannot remember the exact date on which the sodomy took place. It was contended by the prosecution that Azizan was not an accomplice because he was sodomized without his consent. He was under fear, he was scared of both the accused and was not a willing participant in the offence but a victim of it. The prosecution referred to Srinivas Mall Bairoliya v. Emperor AIR 1947 PC 135 in support of its contention. With the greatest respect I do not agree with this submission. The case of Srinivas is not an authority for the proposition that a witness is not an accomplice just because there is no consent on his part in the commission of the act that forms the subject matter of the charge against the accused. The case laid down the principle that when an accomplice acts under a form of pressure which it would require some firmness to resist reliance can be placed on his uncorroborated evidence. In the instant case the evidence shows that Azizan was invited to visit Tivoli Villa by Sukma. Azizan went there to see Sukma’s new apartment. He went there not with the intention of committing sodomy with both the accused. His actus reus alone is not sufficient to make him an accomplice, there must also be the intention on his part (see Ng Kok Lian’s case). For the reasons I therefore find that Azizan is not an accomplice.”
Incidentally, it is a finding of fact by the learned trial Judge that Azizan is not an accomplice which an appellate court should not or should be very slow to interfere. In any event I find no reason to disagree with the reasoning of the trial Judge in coming to his conclusion as he did. There was no evidence adduced that Azizan planned or agreed to any plan for him to come to the apartment to be sodomized or to participate in such activity that night. There was nothing to suggest that Azizan “concurred ‘fully in the criminal designs of another for a certain time, until getting alarmed or for some other cause, they turned upon their former associates and gave information against them’.” He gave his reason why he was at the apartment and it was unchallenged by the defence. The assertion that he remained in a position even after the First Appellant had sodomized him thereby enabling the Second Appellant to sodomize him as well, should not be taken as a piece of evidence that would make him an accomplice of the first order. To do so may set an undesirable precedent whereby even a victim of a gang rape would be classified as an accomplice for similar reason. Indeed the law is clear that – “(T)he court must therefore approach his evidence in the same way and not come to automatic conclusion as in Haji Ismail’s case (supra) that he is an accomplice just because counsel said so. There can be no automatic application of the rule as the accomplice’s evidence to any witness nor could a witness be prima facie an accomplice without first examining his evidence to find out whether he is an accomplice or not; …..
Thus in every case when the issue is raised that a witness is an accomplice the court must study the evidence and make the necessary finding. There can be no rule of law or evidence that a witness is automatically an accomplice just because of his actus reus. The whole idea is completely contrary to the basic concept of criminal liability” per Salleh Abas CJ (Malaya) (as he then was) in Ng Kok Lian & Anor v. Public Prosecutor (1983) 2 MLJ 379 at p.382.
Furthermore, the fact that Azizan did not run away upon seeing the First Appellant in the apartment that night should not cloak him as an accomplice. He gave his reason for not being able to get off the clutches of the First Appellant. And his action should be judged under the circumstances he was in, vis-à-vis the First Appellant. Azizan was a mere driver of the second most powerful man in the nation at that time who had all the state apparatus at his disposal.
The fact that Azizan did not even dare to lodge a police report on the incidents should illustrate the predicament that he was in. He also executed P5 and sought the advice of a very senior counsel in the person of Mr. Karpal Singh. It may be easy for anyone to sit in a judgment seat to advise on what he should have done. But the man said that he was ashamed of what had happened and was gravely in doubt if anyone would believe him at that time let alone the Police force. In fact his apprehension was not without any basis since it was not in dispute that initially he went through the anguish of being questioned and investigated by the Police when the sordid story focusing on the First Appellant began to emerge. Indeed it is no longer an issue that he was coerced to retract his allegation as revealed in P5. Accordingly to brand Azizan as an accomplice without considering the aforesaid reasons would tantamount to castigating a rape victim for being in the wrong place at the wrong time. To my mind such a draconian view would amount to a grave injustice to an innocent victim of sexual assaults.
Finally even assuming that the learned trial Judge might have been wrong in not finding Azizan as an accomplice, he did not however close his mind to the issues of corroboration of the need to warn himself of the danger of convicting a person on uncorroborated evidence particularly in sexual offence cases. In short, though he ruled that Azizan was not an accomplice, he also considered, albeit indirectly, the alternative probability of Azizan being one and thus proceeded to identify and analyse the evidence that could be corroborative in nature and came to his findings. I will deal with this point in greater detail later in this judgment.
c) Corroboration of Azizan
I am very well aware of section 114 (b) of the Evidence Act 1950 which provides :
‘The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.
ILLUSTRATIONS
The court may presume –
(a) ……
(b) ……
that an accomplice is unworthy of credit unless he is corroborated in material particulars;’
But such presumption should not arise in this case in view of the finding of the learned trial Judge that Azizan is not an accomplice. This is what the learned trial Judge said : (at page 266 paragraph H)
“Before considering whether there is a need for corroboration and whether there is in fact corroboration in this case, I propose to state briefly the law on this subject. The word corroboration had no special technical meaning; by itself it meant no more than evidence tending to confirm other evidence (see Director of Public Prosecutions v. Kilbourne [1973] 1 All ER 440). It has also been said that what is required is some additional evidence rendering it probable that the story of the complainant is true and that it is reasonably safe for the court to act upon the evidence. In the celebrated case of R v. Baskerville (1916) 2 KB 658 at p 667 Viscount Reading LCJ said :
‘We hold that the evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.’
It has also been held that corroborative evidence is not necessarily restricted to the oral evidence of an independent witness. Corroboration can equally be well afforded by established facts and the logic of established facts sometimes speaks even more eloquently than words (see Brabakaran v. PP [1966] 1 MLJ 64).
I shall now deal with the question whether corroboration is required. It was contended by the defence that Azizan, a victim of the alleged sodomy, committed by both the accused is an accomplice and therefore his evidence needs to be corroborated. I have earlier in this judgment dealt with the question of an accomplice and the need for corroboration in respect of the evidence of an accomplice and made a ruling that Azizan is not an accomplice. Nevertheless in a case of this nature which is a sexual offence corroboration of Azizan’s evidence is desirable though not technically essential and the court should give sufficient attention to the matter (see Koh Eng Soon v. Rex [1950] MLJ 52).
In PP v. Mardai [1950] MLJ 33 the accused was charged for an offence of outraging the modesty of a woman under s 354 of the Penal Code. On the issue of the need for corroboration of the complainant’s evidence Spenser-Wilkinson had this to say at p 33 :
‘Whilst there is no rule of law in this country that in sexual offences the evidence of the complainant must be corroborated; nevertheless it appears to me, as a matter of common sense, to be unsafe to convict in cases of this kind unless either the evidence of the complainant is unusually convincing or there is some corroboration of the complainant’s story.’
An allegation of sodomy can be easily made but very difficult to refute and the evidence in support of such a charge has to be very convincing in order to convict the accused. In Emperor v. Sari Das AIR 1926 Lah 375 it was said :
‘A charge under s 377 is one very easy to bring and very difficult to refute. Therefore the evidence in support of such a charge has to be very convincing.’
The evidence in support of such a charge must also be corroborated. It is said that ‘it is unsafe to convict on the uncorroborated testimony of the person on whom the offence is said to have been committed unless for any reason that testimony is of special weight – see Ganpart v. Emperor AIR 1918 Lah 322. See also Bal Mukundo Singh v. Emperor (1937) 38 Cr LJ 70 (Cal).
It is therefore trite law that a complainant’s evidence in a sexual offence requires corroboration although a conviction founded on the uncorroborated evidence of the complainant is not illegal provided that the presiding judge must warn himself of the danger of convicting on such uncorroborated evidence (see Chiu Nang Hong v. PP [1965] 31 MLJ 40).”
I find no flaw in the exposition of the law. The remaining issue is on the application of the law to the evidence adduced.
The learned trial Judge went through each of the probable corroborative evidence and made his conclusions. The testimonies of Dr. Mohd. Fadzil bin Man (SP2) and Tun Hanif bin Omar (SP3) were both rejected as corroborative evidence. However, he found not only relevant and admissible but also corroborative evidence to the assertion of Azizan in respect of the conduct of the First Appellant in first asking Azizan to retract the content of P5 and subsequently asking SAC-1 Musa to cease investigation in relation to the Police report 2706/97. And as was rightly found by the learned trial Judge this aspect of the testimonies of Azizan and SAC-1 Musa were not disputed or challenged by the defence.
The other corroborative evidence found by the trial Judge is the confession of the Second Appellant which will be dealt with in greater detail, later on. Suffice it for me to say at this stage, that I have considered the reasoning of the learned trial Judge and I agree with him. I also find as a correct restatement of the law when the Court of Appeal in response to the contention that a retracted confession has no longer any corroborative value, said :
“…..In the case of Tinit & Ors. v. Public Prosecutor (No.2) [1964] MLJ 389 McGilligan J. was of the opinion that retracted confessions ‘once found to have been voluntarily made – were very good corroboration’. That in our view makes sense for it is settled law that a confession on its own, even if subsequently retracted so long as the court is satisfied of its voluntariness and truth, can be a basis to convict an accused person. (See: Osman & Anor v. Public Prosecutor [1967] 1 MLJ 137 FC; [1968] 2 MLJ 137 PC; Yap Sow Keong & Anor v. Public Prosecutor [1947] MLJ 90; Dato’ Mokhtar Hashim v. PP (supra). There is therefore is no reason why it cannot be good corroborative evidence.”
The learned trial Judge was also very careful in his approach when he said this :
“Assuming that I am wrong that there was corroboration, I had in my mind the risk of convicting an accused on uncorroborated evidence. I warned myself of the dangers of convicting both accused on the sodomy charges on uncorroborated evidence of Azizan but nevertheless in this case, I am satisfied and convinced that the charges of sodomy against both accused have been proved beyond a reasonable doubt even though there was no corroboration. This principle had been laid down in Chiu Nang Hong v. PP.”
Hence, in coming to his finding I find that the learned trial Judge did not merely go into the pretext of complying with the law. Although he found Azizan not an accomplice he nevertheless dealt with the evidence on corroboration in view of the nature of the charges preferred against the Appellants. And in so doing he examined all the purported corroborative evidence in details and rejected those that did not satisfy the requirements of the law.
d) Voluntariness/admissibility of the confession of Sukma – the Second Appellant
The classic test for the admissibility of a confession is part objective and part subjective (see : Director of Public Prosecutor v. Ping Lin (1976) AC 574; Dato Mokhtar Hashim v. Public Prosector (1983) 2 MLJ 232). As Yong Pung How CJ said in Sharom bin Ahmad v. Public Prosecutor (2000) 3 SLR 565 at p. 586,
“The question of whether a statement is voluntarily made is essentially a question of fact and the test of voluntariness is both objective and subjective. The question of whether there is an inducement, threat or promise is objectively determined while the question of whether such inducement, threat or promise has operated on the mind of the accused must be subjectively answered from the perspective of the particular accused.”
In dealing with the subjective nature of the test Sharma J said in Public Prosecutor v. Law Say Seck & Ors. (1971) 1 MLJ 199 at p.200, (paragraph A lefthand side)
“It is left to the court entirely to form its own opinion as to whether an inducement, threat or promise held out in any particular case was sufficient to lead the person to suppose that he would gain an advantage of a temporal nature. In doing so the mind of the person making the statement has to be judged rather than that of the person in authority. In scrutinizing a c
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DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN JENAYAH NO. 05-6-2003 (W)
ANTARA
DATO’ SERI ANWAR IBRAHIM --- Perayu
Lawan
PENDAKWA RAYA --- Responden
DAN
RAYUAN JENAYAH NO. 05-7-2003 (W)
SUKMA DARMAWAN SASMITAAT MADJA --- Perayu
Lawan
PENDAKWA RAYA --- Responden
Coram :
Abdul Hamid bin Haji Mohamad, HMP
Rahmah bt. Hussain, HMP
Tengku Baharudin Shah bin Tengku Mahmud, HMR
GROUNDS OF JUDGMENT
On 20 May 2004, at the conclusion of submissions by both learned counsel for the Appellants as well as the learned Attorney General for the Respondent, we reserved our judgment. This is now my judgment.
Both the Appellants had appealed against their convictions and sentences to the Court of Appeal. In the first appeal the First Appellant appealed against his conviction and sentence on a charge preferred against him for an offence punishable under section 377B of the Penal Code. On conviction he was sentenced to 9 years imprisonment to commence after he has served his first sentence in respect of his conviction under the first trial.
In the second appeal the Second Appellant appealed against the conviction and sentence on two charges preferred against him. The first charge was for an offence punishable under section 109 read with section 377B while the second charge was for an offence punishable under section 377B. He has been sentenced to 6 years imprisonment with 2 strokes of the rotan for the first charge and to 6 years imprisonment and 2 strokes of the rotan for the second charge. The imprisonment terms are to run concurrently.
Their appeals were dismissed by the Court of Appeal. Hence this appeal.
For the purpose of this Judgment, I shall first consider the four (4) main issues raised by the defence namely,
a) the credibility of Azizan bin Abu Bakar
b) Azizan being an accomplice
c) Corroboration of Azizan
d) Voluntariness of the confession of Sukma – the Second Appellant.
a) The credibility of Azizan bin Abu Bakar
As I see it the credibility of Azizan is of paramount consideration, as there can be no dispute that the entire prosecution case hinges on his evidence.
It is contended by the Appellants that Azizan is not a credible witness for the following reasons :
(i) The dates in the charges were suggested/given by the police and not by Azizan.
(ii) Azizan despite being sodomised went back to work for First Appellant’s wife.
(iii) In the earlier trial, Azizan denied being sodomised by the First Appellant.
(iv) Azizan’s credit should have been impeached.
(v) Azizan is totally unreliable and inconsistent in that the trial Judge commented upon him/his evidence.
(vi) Azizan said he brought these allegations in the open “demi maruah dan agama” but he himself was convicted of khalwat.
(vii) Azizan was bribed.
The law relating to the assessment of the credibility of witnesses is well established. As Lord Bridge of Harwich said in Attorney General of Hong Kong v. Wong Muk Ping (1987) AC 501 at p. 510,
“It is a common place of judicial experience that a witness who makes a poor impression in the witness box may be found at the end of the day, when his evidence is considered in the light, of all the other evidence bearing upon the issue, to have been both truthful and accurate. Conversely, the evidence of a witness who first seemed impressive and reliable may at the end of the day have to be rejected. Such experience suggests that it is dangerous to assess the credibility of evidence given by witness in isolation from other evidence in the case which is capable of throwing light on its reliability …..” (Emphasis added).
In Bhojraj v. Sitaram (1936) ALR 60 PC the Privy Council said that the real test for either accepting or rejecting the evidence of a witness is how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits in with the rest of the evidence and the circumstances of the case. The case of Mohd. Ali bin Burut & Ors. v. Public Prosecutor (1995) 2 AC 579 supports the proposition that it is important to bear in mind that in deciding on the guilt or otherwise, a trial court will not usually compartmentalize the evidence. It will make its finding of credibility and reliability in respect of a particular witness against the possibilities, probabilities and certainties emerging from the whole body of the evidence before it.
Furthermore it is trite that every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons not to believe him. In P.P. v. Mohamed Ali (1962) MLJ 257, (at page 258) Thomson C.J said this :
“When a Police witness says something that is not inherently improbable his evidence must in the first instance be accepted.”
And in Balasingam v. P.P. (1959) MLJ 193 (at page 194) Ismail Khan J (as he then was) stated :
“After all there is no legal presumption that an interested witness should not be believed. He is entitled to credence until cogent reasons for disbelief can be advanced in the light of evidence to the contrary and the surrounding circumstances.”
So what happens when there are discrepancies or contradictions in a witness’ testimony? Would that make him less than credible and lead to an outright rejection of his entire testimony? In Chean Siong Guat v. P.P. (1969) 2 MLJ 63 (at pages 63 & 64) Abdul Hamid J. (as he then was) had this to say :
“Discrepancies may, in my view, be found in any case for the simple reason that no two persons can describe the same thing in exactly the same way. Sometimes what may appear to be discrepancies are in reality different ways of describing the same thing, or it may happen that the witnesses who are describing the same thing might have seen it in different ways and at different times and that is how discrepancies are likely to arise. These discrepancies may either be minor or serious discrepancies. Absolute truth is I think beyond human perception and conflicting versions of an incident, even by honest and disinterested witnesses, is a common experience. In weighing the testimony of witnesses, human fallibility in observation, retention and recollection are often recognized by the court. Being a question of fact, what a magistrate need do is to consider the discrepancies and say whether they are minor or serious discrepancies. If, after con-them. On the other hand, if a magistrate finds that the discrepancies do not detract from the value of the testimony of the witness or witnesses, it would then be proper for him to regard the discrepancies as trivial and ignore them. On the other hand, if a magistrate finds that the discrepancies relate to a material point which would seriously affect the value of the testimony of the witness or witnesses, then it would be his duty to weigh the evidence carefully in arriving at the truth.”
And in Pie bin Chin v. P.P. (1985) 1 MLJ 234 (at page 235), Wan Yahya J (as he then was) said :
“Discrepancies are no doubt present in this case, as they do ostensibly appear in most cases in evidence of witnesses for the prosecution as well as the defence. The transcripts of most evidence, when thoroughly tooth-combed by any able lawyer, never failed to yield some form of inconsistencies, discrepancies or contradictions but these do not necessarily render the witness’s entire evidence incredible. It is only when a witness’s evidence on material and obvious matters in the case is so irreconcilable, ambivalent or negational that his whole evidence is to be disregarded.
Forgetfulness and failure to recall exactly certain events, which did not seem to be important to the witness, do not necessarily shake his credibility or render other parts of his story unworthy of belief. Various persons are endowed with varying powers of cognition, attentiveness and perception, so that it is not uncommon for two witnesses to a common event to describe it in slightly differing versions.”
Thus, the fact that there are discrepancies in a witness’ testimony does not straight away make him (in this case Azizan) an unreliable witness and make the whole of his evidence unacceptable.
Having laid down the legal principles with regard to credibility and how discrepancies on a witness are to be treated in assessing credibility, let us now look at what the learned trial Judge had to say on the credibility of Azizan because of the latter’s inconsistent statements as to the date of the commission of the offence. At page 255 (paragraph C) of his Judgment (2001) 3 MLJ 193, he said :
“In his testimony Azizan said he was confused because he was asked about the months of May 1994 and May 1992 repeatedly as stated above. I find as a fact that he was confused. When a witness is confused, it does not mean he was lying. The naked truth is that he could not remember what he had said. I am satisfied he was not lying. In any event, the issue whether he told the police he was sodomized in May 1994 and May 1992 are not the issues in the current charges against both the accused. The issue is whether he was sodomized by both the accused between the months of January and March 1993 at Tivoli Villa. I therefore rule the credit of Azizan is not affected on this score.”
Then, after considering the evidence of Azizan as to the date of the offence in relation to the evidence of the Investigation Officer – SAC-1 Musa, the learned trial Judge said : (at page 255 paragraph 1 to page 256 paragraph A)
“Be that as it may, the evidence of SAC-1 Musa clearly states that Azizan was consistent in his statements on the issue of sodomy although he was not sure of the exact dates. The relevant dates we are concerned with in the present charges are between the months of January and March 1993. Azizan emphatically said in evidence that he was sodomized by both Dato’ Seri Anwar and Sukma at Tivoli Villa between these dates and he gave the reasons for remembering the dates. This evidence was not successfully challenged. It is therefore established on this evidence that Azizan was sodomized by both Dato’ Seri Anwar and Sukma in Tivoli Villa between January to March 1993. Whether he was sodomized in May 1994 or May 1992 is not relevant as these dates are not in issue to be decided in this case. I see no merits on this contention and the credit of Azizan is not affected on this ground.”
Finally on the issue of the credibility of Azizan, the learned Judge made a firm finding in relation to the ingredients of the charges against both Appellants as follows : (page 258, paragraphs D-I)
“…. he is a wholly reliable, credible and truthful witness taking into consideration the whole of his evidence notwithstanding inconsistencies, discrepancies and contradictions which did not detract the weight and truth of his evidence in relation to the ingredients of the charges against both accused.
Azizan has truthfully and without embellishment, distortion or exaggeration in his evidence narrated in minute detail how he was sodomized by Dato’ Seri Anwar and Sukma at the date and place as stated in the charges against both accused.
…. His description and direct experience of being sodomized completely negatives any probability that Azizan was tutored or coached as claimed by the defence counsel. No reasonable person or judge could on the evidence come to any other finding than the firm and unescapable conclusion that both accused sodomized Azizan gaily whetting their appetites at Tivoli Villa. Only persons directly and actively subjected to these acts of sodomy would be able to narrate the details of the whole episode.
I am of the firm view that Azizan was speaking the whole truth when he said in evidence that he was sodomized at Tivoli Villa between the months of January and March 1993 by both accused as stated in the charge. There is no reason why he should come out with such meticulous details describing the preliminaries sex play indulged in by Dato’ Seri Anwar unless this was true. He has nothing to gain whatsoever but stood to lose everything if his evidence was not true as this would affect his self respect and his good name and standing in the eyes of the public and would also bring embarrassment to his family members. Further one cannot conceive that one would fabricate a serious charge of sodomy against the Minister of Finance and Deputy Prime Minister of Malaysia.”
In conclusion he said,
“It cannot be denied that there are discrepancies in Azizan’s testimony. I have considered these discrepancies earlier and had made my finding on them. Apart from that, I do not find any serious discrepancies that would affect Azizan’s credibility or reliability as a witness of truth on the ingredients of the charges against both the accused.”
The learned Judges of the Court of Appeal agreed with the finding of the learned trial Judge when they said : (at p.214 paragraph 106 – (2004) 1 MLJ)
“Surely therefore it would be wrong in law to wholesale reject the evidence of Azizan just because he faltered in few instances in the course of his testimony. Indeed discrepancies found in the testimony of a witness may be evidence of his truthfulness rather than the reverse (see also Dato’ Mokhtar v. Public Prosecutor (supra).”
As to the significance of the date in the charge, the learned trial Judge stated (at page 249) as follows :
“In any event a date in the charge has never been material. In R v. Severo Dossi (1918) 13 Cr App R 158 (quoted in Law Kiat Lang v. P.P (1996) 1 MLJ 252,) Lord Atkin J observed :
‘From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence’.”
And the Judges of the Court of Appeal agreed with the trial Judge by stating that “there are authoritative decisions of our Courts wherein time and date in a charge were held to be immaterial”. They then referred to the case of Hussin bin Sillit v. Public Prosecutor (1988) 2 MLJ 232, where Mohd. Azmi SCJ has this to say at p.236,
“It should be borne in mind that where the charge relates to only one offence, merely amending the date, place or time in the charge would not necessarily constitute amending the offence, and under section 156 of the Criminal Procedure Code no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission ….’ Clearly, each situation must depend on the facts and circumstances of the particular case in determining whether any amendment as to time, date or place affected before or in the course of the trial entails changing the offence with which the accused is charged into an entirely different offence. There is no reason to suppose that every amendment, either before or after commencement of the trial, must necessarily change the occasion in the original charge into an entirely different occasion so as to exclude evidence pertaining to it from being ‘evidence in support of a defence of alibi’.”
The Court of Appeal also expressed its view on the issue of the date in relation to the charges preferred against the appellants and specifically on the issue of alibi. This is what it says : (at page 199 (2004) 1 MLJ 177)
“On the issue of the amendment to the charges in respect of the date alleged in the commission of the offences subsequent to the notice of alibi, we need only to adopt the view expressed by the majority in the Supreme Court of Canada in the case of Regina v. P (MB) 89 CCC (3d) 289; [1994] CCC LEXIS 2454; 113 DLR (4th) 461, where Lamer CJ opined thus (at p.297) :
“The fact that an accused may have an alibi for the period (or part of the period) described in the indictment does not automatically ‘freeze’ the dates specified in the indictment. That is to say, there is no vested right to a given alibi. Alibi evidence must respond to the case as presented by the Crown and not the other way around”.
Now, in sexual offences, as in this case, the essential ingredients are the sexual act and the identity of the offender. Therefore, it is incorrect to say that the date is a vital ingredient of the charge. In the case of R v. Richard Beynon (1999) EWCA Crim. 1172, where the charges framed against the accused did not have the time and place but only the breath of the period when the indecent assault was alleged to have taken place, the Court of Criminal Appeal of England had this to say :
“We are not saying that that is uncommon; indeed it is very common in allegations and charges of this sort.”
And our own Federal Court in the case of Ku Lip See v. Public Prosecutor (1982) 1 MLJ 194, had said this: (at p.196 – paragraph I)
“With reference to question (1), we are constrained to observe that although the charge has not stated exactly when the offence was committed during the months of May and June 1978 it has nevertheless specifically defined the time and place sufficiently to enable the applicant to answer the charge.”
Furthermore, the learned trial Judge clearly said in his judgment that the evidence of Azizan that he was sodomized between the dates specified in the charge was not successfully challenged. Thus in order to reject this finding of fact by the trial Judge there must be strong and compelling reason to do so. Particularly so, as this finding of fact has been accepted by the Court of Appeal.
It is settled law that very rarely does a higher appellate court interfere with concurrent findings of fact by the courts below. Such view was expressed by the Privy Council in the case of Sattar Buxoo and anor. v. The Queen (1988) 1 WLR 820 PC, an appeal from Mauritius, where it is said at p.824,
“In the present case, however, it is plain that the circumstances of the appeal take it far outside any possible application of the principles in question. No point of law is involved. The only issue before the Intermediate Court and the Supreme Court was whether on the evidence led the defendants had been identified as being among the persons who carried out the serious assault which was undoubtedly perpetrated on the victim Fockeena. The Intermediate Court found that they had been and the finding was upheld by the Supreme Court. The Board could never consider it right to interfere with a concurrent finding of fact of that nature.” (Emphasis added).
And nearer home, that seems to be also the approach of this court as expressed in the recent case of Sri Kelang-Kota – Rakan Engineering J.V. Sdn. Bhd. & Anor. v. Arab Malaysian Prima Realty Sdn. Bhd. & Ors. (2003) 3 MLJ 257 at p.273 where Abdul Malek Ahmad FCJ (as he then was) said,
“In our view, looking at the above cited passages from the judgment of the Court of Appeal and having regard to the fact that the issue that was decided by the Court of Appeal and the High Court was clearly one of fact, there is obviously no merit in the contention of the appellants as found in the grounds of appeal that the Court of Appeal erred in law in deciding as they did. Even assuming for a moment that the Court of Appeal erred in the application of the principles of law to the particular set of facts in the instant appeal, there is no room for this court to reverse the concurrent finding of fact made by the High Court and the Court of Appeal that the appellants were the guilty party in breach of the agreements since it is trite that the appellate court is not prepared to interfere with the concurrent finding of facts made by the courts below as held by this court in Lim Geak Liang v. East West UMI Insurance Bhd. (1997) 3 MLJ 517 at pg. 523.” (Emphasis added).
To sum up, in view of the abovesaid reasons and the authorities referred to earlier, I find myself reluctant to interfere with the finding of fact by both the courts below regarding the credibility of Azizan.
b) Azizan being an accomplice
Section 133 of the Evidence Act 1950, clearly provides that :
“An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.”
To my mind the learned trial Judge has dealt with the issue of accomplice correctly and quite admirably when he said : [at pp. 249 – 250 (2003) 3 MLJ]
“An accomplice is defined in Wharton’s Law Lexicon as ‘a guilty associate in crime’. In Regina v. Mullins 3 Cox CC 526,Maule J described an accomplice as a person who has concurred ‘fully in the criminal designs of another for a certain time, until getting alarmed or for some other cause, they turned upon their former associates and gave information against them. These persons may be truly called accomplice’.
When the issue whether a witness is an accomplice is raised ‘the court must study the evidence and make the necessary finding. There can be no rule of law or evidence that a witness is automatically an accomplice just because of his actus reus. The whole idea is completely contrary to the basic concept of criminal liability’ – per Salleh Abas CJ (as he then was) in Ng Kok Lian Anor v. PP [1983] 2 MLJ 379. In deciding whether a witness is an accomplice the court has therefore to consider the evidence that is before it. Bearing in mind this principle can it be said that Azizan is an accomplice? Does the evidence show that Azizan is an accomplice? In his evidence he said in cross examination that he told the police he was sodomized between the months of January and March 1993 although he cannot remember the exact date on which the sodomy took place. It was contended by the prosecution that Azizan was not an accomplice because he was sodomized without his consent. He was under fear, he was scared of both the accused and was not a willing participant in the offence but a victim of it. The prosecution referred to Srinivas Mall Bairoliya v. Emperor AIR 1947 PC 135 in support of its contention. With the greatest respect I do not agree with this submission. The case of Srinivas is not an authority for the proposition that a witness is not an accomplice just because there is no consent on his part in the commission of the act that forms the subject matter of the charge against the accused. The case laid down the principle that when an accomplice acts under a form of pressure which it would require some firmness to resist reliance can be placed on his uncorroborated evidence. In the instant case the evidence shows that Azizan was invited to visit Tivoli Villa by Sukma. Azizan went there to see Sukma’s new apartment. He went there not with the intention of committing sodomy with both the accused. His actus reus alone is not sufficient to make him an accomplice, there must also be the intention on his part (see Ng Kok Lian’s case). For the reasons I therefore find that Azizan is not an accomplice.”
Incidentally, it is a finding of fact by the learned trial Judge that Azizan is not an accomplice which an appellate court should not or should be very slow to interfere. In any event I find no reason to disagree with the reasoning of the trial Judge in coming to his conclusion as he did. There was no evidence adduced that Azizan planned or agreed to any plan for him to come to the apartment to be sodomized or to participate in such activity that night. There was nothing to suggest that Azizan “concurred ‘fully in the criminal designs of another for a certain time, until getting alarmed or for some other cause, they turned upon their former associates and gave information against them’.” He gave his reason why he was at the apartment and it was unchallenged by the defence. The assertion that he remained in a position even after the First Appellant had sodomized him thereby enabling the Second Appellant to sodomize him as well, should not be taken as a piece of evidence that would make him an accomplice of the first order. To do so may set an undesirable precedent whereby even a victim of a gang rape would be classified as an accomplice for similar reason. Indeed the law is clear that – “(T)he court must therefore approach his evidence in the same way and not come to automatic conclusion as in Haji Ismail’s case (supra) that he is an accomplice just because counsel said so. There can be no automatic application of the rule as the accomplice’s evidence to any witness nor could a witness be prima facie an accomplice without first examining his evidence to find out whether he is an accomplice or not; …..
Thus in every case when the issue is raised that a witness is an accomplice the court must study the evidence and make the necessary finding. There can be no rule of law or evidence that a witness is automatically an accomplice just because of his actus reus. The whole idea is completely contrary to the basic concept of criminal liability” per Salleh Abas CJ (Malaya) (as he then was) in Ng Kok Lian & Anor v. Public Prosecutor (1983) 2 MLJ 379 at p.382.
Furthermore, the fact that Azizan did not run away upon seeing the First Appellant in the apartment that night should not cloak him as an accomplice. He gave his reason for not being able to get off the clutches of the First Appellant. And his action should be judged under the circumstances he was in, vis-à-vis the First Appellant. Azizan was a mere driver of the second most powerful man in the nation at that time who had all the state apparatus at his disposal.
The fact that Azizan did not even dare to lodge a police report on the incidents should illustrate the predicament that he was in. He also executed P5 and sought the advice of a very senior counsel in the person of Mr. Karpal Singh. It may be easy for anyone to sit in a judgment seat to advise on what he should have done. But the man said that he was ashamed of what had happened and was gravely in doubt if anyone would believe him at that time let alone the Police force. In fact his apprehension was not without any basis since it was not in dispute that initially he went through the anguish of being questioned and investigated by the Police when the sordid story focusing on the First Appellant began to emerge. Indeed it is no longer an issue that he was coerced to retract his allegation as revealed in P5. Accordingly to brand Azizan as an accomplice without considering the aforesaid reasons would tantamount to castigating a rape victim for being in the wrong place at the wrong time. To my mind such a draconian view would amount to a grave injustice to an innocent victim of sexual assaults.
Finally even assuming that the learned trial Judge might have been wrong in not finding Azizan as an accomplice, he did not however close his mind to the issues of corroboration of the need to warn himself of the danger of convicting a person on uncorroborated evidence particularly in sexual offence cases. In short, though he ruled that Azizan was not an accomplice, he also considered, albeit indirectly, the alternative probability of Azizan being one and thus proceeded to identify and analyse the evidence that could be corroborative in nature and came to his findings. I will deal with this point in greater detail later in this judgment.
c) Corroboration of Azizan
I am very well aware of section 114 (b) of the Evidence Act 1950 which provides :
‘The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.
ILLUSTRATIONS
The court may presume –
(a) ……
(b) ……
that an accomplice is unworthy of credit unless he is corroborated in material particulars;’
But such presumption should not arise in this case in view of the finding of the learned trial Judge that Azizan is not an accomplice. This is what the learned trial Judge said : (at page 266 paragraph H)
“Before considering whether there is a need for corroboration and whether there is in fact corroboration in this case, I propose to state briefly the law on this subject. The word corroboration had no special technical meaning; by itself it meant no more than evidence tending to confirm other evidence (see Director of Public Prosecutions v. Kilbourne [1973] 1 All ER 440). It has also been said that what is required is some additional evidence rendering it probable that the story of the complainant is true and that it is reasonably safe for the court to act upon the evidence. In the celebrated case of R v. Baskerville (1916) 2 KB 658 at p 667 Viscount Reading LCJ said :
‘We hold that the evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.’
It has also been held that corroborative evidence is not necessarily restricted to the oral evidence of an independent witness. Corroboration can equally be well afforded by established facts and the logic of established facts sometimes speaks even more eloquently than words (see Brabakaran v. PP [1966] 1 MLJ 64).
I shall now deal with the question whether corroboration is required. It was contended by the defence that Azizan, a victim of the alleged sodomy, committed by both the accused is an accomplice and therefore his evidence needs to be corroborated. I have earlier in this judgment dealt with the question of an accomplice and the need for corroboration in respect of the evidence of an accomplice and made a ruling that Azizan is not an accomplice. Nevertheless in a case of this nature which is a sexual offence corroboration of Azizan’s evidence is desirable though not technically essential and the court should give sufficient attention to the matter (see Koh Eng Soon v. Rex [1950] MLJ 52).
In PP v. Mardai [1950] MLJ 33 the accused was charged for an offence of outraging the modesty of a woman under s 354 of the Penal Code. On the issue of the need for corroboration of the complainant’s evidence Spenser-Wilkinson had this to say at p 33 :
‘Whilst there is no rule of law in this country that in sexual offences the evidence of the complainant must be corroborated; nevertheless it appears to me, as a matter of common sense, to be unsafe to convict in cases of this kind unless either the evidence of the complainant is unusually convincing or there is some corroboration of the complainant’s story.’
An allegation of sodomy can be easily made but very difficult to refute and the evidence in support of such a charge has to be very convincing in order to convict the accused. In Emperor v. Sari Das AIR 1926 Lah 375 it was said :
‘A charge under s 377 is one very easy to bring and very difficult to refute. Therefore the evidence in support of such a charge has to be very convincing.’
The evidence in support of such a charge must also be corroborated. It is said that ‘it is unsafe to convict on the uncorroborated testimony of the person on whom the offence is said to have been committed unless for any reason that testimony is of special weight – see Ganpart v. Emperor AIR 1918 Lah 322. See also Bal Mukundo Singh v. Emperor (1937) 38 Cr LJ 70 (Cal).
It is therefore trite law that a complainant’s evidence in a sexual offence requires corroboration although a conviction founded on the uncorroborated evidence of the complainant is not illegal provided that the presiding judge must warn himself of the danger of convicting on such uncorroborated evidence (see Chiu Nang Hong v. PP [1965] 31 MLJ 40).”
I find no flaw in the exposition of the law. The remaining issue is on the application of the law to the evidence adduced.
The learned trial Judge went through each of the probable corroborative evidence and made his conclusions. The testimonies of Dr. Mohd. Fadzil bin Man (SP2) and Tun Hanif bin Omar (SP3) were both rejected as corroborative evidence. However, he found not only relevant and admissible but also corroborative evidence to the assertion of Azizan in respect of the conduct of the First Appellant in first asking Azizan to retract the content of P5 and subsequently asking SAC-1 Musa to cease investigation in relation to the Police report 2706/97. And as was rightly found by the learned trial Judge this aspect of the testimonies of Azizan and SAC-1 Musa were not disputed or challenged by the defence.
The other corroborative evidence found by the trial Judge is the confession of the Second Appellant which will be dealt with in greater detail, later on. Suffice it for me to say at this stage, that I have considered the reasoning of the learned trial Judge and I agree with him. I also find as a correct restatement of the law when the Court of Appeal in response to the contention that a retracted confession has no longer any corroborative value, said :
“…..In the case of Tinit & Ors. v. Public Prosecutor (No.2) [1964] MLJ 389 McGilligan J. was of the opinion that retracted confessions ‘once found to have been voluntarily made – were very good corroboration’. That in our view makes sense for it is settled law that a confession on its own, even if subsequently retracted so long as the court is satisfied of its voluntariness and truth, can be a basis to convict an accused person. (See: Osman & Anor v. Public Prosecutor [1967] 1 MLJ 137 FC; [1968] 2 MLJ 137 PC; Yap Sow Keong & Anor v. Public Prosecutor [1947] MLJ 90; Dato’ Mokhtar Hashim v. PP (supra). There is therefore is no reason why it cannot be good corroborative evidence.”
The learned trial Judge was also very careful in his approach when he said this :
“Assuming that I am wrong that there was corroboration, I had in my mind the risk of convicting an accused on uncorroborated evidence. I warned myself of the dangers of convicting both accused on the sodomy charges on uncorroborated evidence of Azizan but nevertheless in this case, I am satisfied and convinced that the charges of sodomy against both accused have been proved beyond a reasonable doubt even though there was no corroboration. This principle had been laid down in Chiu Nang Hong v. PP.”
Hence, in coming to his finding I find that the learned trial Judge did not merely go into the pretext of complying with the law. Although he found Azizan not an accomplice he nevertheless dealt with the evidence on corroboration in view of the nature of the charges preferred against the Appellants. And in so doing he examined all the purported corroborative evidence in details and rejected those that did not satisfy the requirements of the law.
d) Voluntariness/admissibility of the confession of Sukma – the Second Appellant
The classic test for the admissibility of a confession is part objective and part subjective (see : Director of Public Prosecutor v. Ping Lin (1976) AC 574; Dato Mokhtar Hashim v. Public Prosector (1983) 2 MLJ 232). As Yong Pung How CJ said in Sharom bin Ahmad v. Public Prosecutor (2000) 3 SLR 565 at p. 586,
“The question of whether a statement is voluntarily made is essentially a question of fact and the test of voluntariness is both objective and subjective. The question of whether there is an inducement, threat or promise is objectively determined while the question of whether such inducement, threat or promise has operated on the mind of the accused must be subjectively answered from the perspective of the particular accused.”
In dealing with the subjective nature of the test Sharma J said in Public Prosecutor v. Law Say Seck & Ors. (1971) 1 MLJ 199 at p.200, (paragraph A lefthand side)
“It is left to the court entirely to form its own opinion as to whether an inducement, threat or promise held out in any particular case was sufficient to lead the person to suppose that he would gain an advantage of a temporal nature. In doing so the mind of the person making the statement has to be judged rather than that of the person in authority. In scrutinizing a c
Posted at 11:13 am by durra
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Lawyer: Anwar an optimist
Lawyer: Anwar an optimist
BY M. KRISHNAMOORTHY
PETALING JAYA: Lawyer Sankara N. Nair has seen Datuk Seri Anwar Ibrahim more than 700 times in prison over the past six years – even more than the latter's wife, Datin Seri Dr Wan Azizah Wan Ismail.
“There were even times when other lawyers poked fun at me by asking me whether I had other clients.
“For the first four years, I spent an average of 12 hours a week travelling to the Sungai Buloh prison and meeting him,” the 48-year-old Sankara, who is also known as S.N. Nair, recalled.
His professional relationship with Anwar started rather unexpectedly.
“I was holidaying in Australia, when a lawyer called to urge me to act for Anwar. That was six years ago.
“I had not known Anwar personally prior to taking up the case,” he told The Star yesterday.
Over the years, their relationship blossomed.
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Anwar's lawyer Sankara reading a copy of The Star's special Breaking News edition. |
“Many of my friends and relatives discouraged me from defending Anwar. They said it was crazy and foolhardy, especially for a lawyer who was just starting out in legal practice,” said the former Asst Supt of Police.
Before the proceedings started yesterday, Sankara was the first among six lawyers, whom Anwar met in court.
“Looking intently at me he said: 'Let's pray',” said Sankara.
He described his client as a person with steely resolve and positive characteristics.
“I found him to be an incorrigible optimist. He has a very strong moral fibre and has the incredible capacity to turn every unfavourable judicial and political setback into a light moment.
“The only time he broke down emotionally was when he attended his mother's funeral,” said Sankara.
He also said Anwar would pursue his quest for a review of the Federal Court’s decision in upholding his conviction and six-year jail term for corruption.
“The hearing of the application for the review will go on as scheduled on Monday,” he added.
In his application for the review, Anwar is asking the Federal Court to exercise its power under Rule 137 of the Federal Court Rules 1995 to set aside the conviction and sentence for corruption imposed by the High Court which were upheld by the Federal Court on July 20, 2002.
Yesterday, Sankara also filed a notice of motion at the Federal Court registry to include additional grounds for the hearing.
Posted at 11:06 am by durra
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