THERE is a risk or danger if we accept the testimony of a child blindly without caution. For many years, the Evidence Act 1950 [Act 56] provide the requirement for corroborating evidence for the admission of child testimony in court. The main reason for the need of corroborating evidence for child testimony (whether in sworn or unsworn testimony cases) is because children, are unable to differentiate between “fantasy” and “reality”.

This point has been highlighted in the case of Chao Chong & Ors v PP [1960] MLJ 238, Loo Chuan Huat v PP [1971] 2 MLJ 167, Tham Kai Yau & Ors v PP [1977] 1 MLJ 174, Shanmugam a/l Munusamy v PP [1999] 1 MLJ 288 and many more. Recently, the government has tabled several amendment bills related to child witnesses and the gathering of evidence in legal processes. These amendment bills were among the eight bills tabled by Minister in the Prime Minister’s Department (Law and Institutional Reforms) Azalina Othman Said on Tuesday (July 9). Among them are the Evidence of Child Witness (Amendment) Bill 2024; Evidence (Amendment) Bill 2024; Oaths and Affirmations (Amendment) Bill 2024 and Sexual Offences against Children (Amendment) Bill 2024 and Security Offences (Special Measures) (Amendment) Bill 2024. There is a concern that the government will remove the requirement for corroboration evidence for the testimony of a children under the Evidence Act 1950 [Act 56] entirely.

What is corroborating evidence? Corroborating evidence is the evidence that tends to support a proposition in a case that is already been supported by some evidence. Lord Hailsham of St Marylebone in PP v Kilbourne [1973] AC 729 said that the word corroboration by itself means no more than evidence tending to confirm other evidence. Lord Morris of Borth-y-Gest in DPP v Hester [1973] AC 296 seems to suggest the corroboration is evidence tending to confirm and support other evidence. It is evidence which renders other evidence more probable. The very basis of the corroboration is to induce belief in evidence that might otherwise be regarded to be as untrustworthy.

There are two situations where corroboration evidence is needed namely corroboration required as matter of law and corroboration corroboration required as matter of practice or prudence. Corroborating evidence is required on certain cases like testimony of a children, sedition cases, entries in book of account, sexual offences, identification evidence as well as accomplice evidence.

As for testimony of a child, Section 133A of the Evidence Act 1950 [Act 56] provide for unsworn testimony of a children shall not be accepted without corroborating evidence. This provide the basis for corroboration required as a matter of law. Section 133A of Evidence Act 1950 [Act 56] states “Where, in any proceedings against any person for any offence, any child of tender years called as a witness does not in the opinion of the court understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth…”.

However, the proviso provided under this particular section further stated that “Provided that, where evidence admitted by virtue of this section is given on behalf of the prosecution, the accused shall not be liable to be convicted of the offence unless that evidence is corroborated by some other material evidence in support thereof implicating him”. In, Sidek Bin Ludan v PP [1995] 3 MLJ 178, Abdul Malik Ishak J states “The proviso to section 133A of the Act in simple terms means this: A conviction cannot stand on the uncorroborated evidence by an unsworn child witness….”.

As for sworn evidence of a child, it been dealt under the heading of corroboration required as matter of practice of prudence. Concern also been emphasized for evidence given by sworn testimony of a child. Per Azmi LP in Loo Chuan Huat v PP [1971] 2 MLJ 167 states that “One point, perhaps, requires observation: though the evidence of P.W. 4 was sworn evidence, he was nevertheless a young person and in our opinion the jury should have been warned of the risk of accepting his evidence”. As Lord Goddard C.J. in Reg v Campbell [1956] 2 QB 432, 438 said: “... The sworn evidence of a child need not as a matter of law be corroborated, but a jury should be warned not that they must find corroboration, but that there is a risk in acting on the uncorroborated evidence of young boys or girls, though they may do so if convinced that the witness is telling the truth, and this warning should also be given where a young boy or girl is called to corroborate the evidence either of another child, sworn or unsworn, or of an adult”.

We do take note about the exceptions from corroboration evidence which been pointed under the Sexual Offences Against Children Act 2017 [Act 792] (“SOACA”). SOACA creates a presumption that the child victim is competent to give evidence in the proceeding where the accused is charged for offences under SOACA or the Schedule to SOACA. The presumption is however rebuttal (Section 17 Sexual Offences Against Children Act 2017). An accused can be convicted of offences under SOACA or the Schedule to SOACA notwithstanding the evidence of the child victim whether given on oath or otherwise is uncorroborated (Section 18 Sexual Offences Against Children Act 2017). Despite the exception provided under SOACA, the requirement for corroborating evidence for children is seen important and should not be removed entirely from the Evidence Act 1950 [Act 56] for the sake of justice and fairness in the due process. – July 13, 2024.

* Muzaffar Syah Mallow is associate professor at the Faculty of Shariah and Laws, Universiti Sains Islam Malaysia.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.