“Any Risk of the conviction of an innocent
person is lessened if conviction is based upon the testimony of more than one acceptable
witness. In civil, as well as criminal cases, it would not be unreasonable to
expect a general rule requiring a party who seeks to prove certain facts by the
testimony of a single witness, to adduce additional independent evidence, by
way of confirmation or support, so that the tribunal of fact is double sure
before it makes a particular finding, or gives judgment in that party’s favor.”
a) What is corroboration and why is it
necessary?
It is submitted
that corroboration is evidence that confirms or supports a statement, theory,
or finding; confirmation.[1]
Corroboration is necessary because in many instances evidence submitted by a
single witness may be insufficient as it might be biased based on a set off
factors such as the witness’s characteristics, a witness may have a motive of
lying to the Court with regards to the specific case, a witness may not possess
or rather have undeveloped or poor mental intellectual faculties that may
otherwise hinder on his/her testimony.
Nature of the
evidence being submitted this categorically applies to where the nature of the
evidence is audio or visual methods of identification have been used as
mistaken identification is to be regarded as the greatest cause of wrong
convictions.
Type of
complaint, this applies to where the crime complained of is very grave such as
rape or murder in such an instance it would be safer for the tribunal of fact
to rely on corroboration as the results are dire hence an innocent person
should not be condemned because of uncorroborated evidence as this would be
highly unfair.
b) Is the requirement for corroboration
mandatory or can courts of law dispense with it?
In Common law
there was neither a mandatory order as to prohibition neither as to the dangers
of relying on corroborated evidence but in the modern day Kenyan legal set up,
there are instances where corroboration is mandatory and instances where it is
not mandatory to require corroboration. If there’s an evidential basis to
support that a witness in unreliable then the courts can ask for some
supporting material[2].
There are some
instances where corroboration is required by statute this makes it mandatory
for the Courts of law to demand for it, failure of which results to a good
ground for appeal. for example, in the Penal Code[3] section
111 states that ‘A person cannot be accused of committing perjury or of subornation of perjury solely upon the evidence of
one witness as to the falsity of any statement alleged to be false’ this
clearly states that that statement of the witness in order for it to hold water
must be corroborated by some sort of supporting material, the rationale for
this rule might be that if the prosecution for perjury was made too easy then
it would discourage many persons from offering to give evidence[4].
Likewise Section
43 of the Traffic Act[5]
provides that a person charged with a traffic offence under the section shall
not be liable to be convicted solely on the evidence of one witness to the
effect that in the opinion of the witness, the person charged was driving the
vehicle at such greater speed. Therefore
if the evidence was of two or more witnesses then one can be convicted of this
speeding offense.
Section 124 of
the Evidence Act[6]
states that where the evidence of a crime is submitted by a child of tender
years then it must be corroborated especially if the child is the victim,
however this provision has an ouster clause where it states that if the court
is satisfied that the victim is telling the truth then it can convict based on
the uncorroborated evidence[7]
In matters of
treason Section 45 (2) of the Penal Code provides, “No person charged with
treason, or with any of such felonies, may be convicted, except on his own plea
of guilty, or on the evidence in open court of two witnesses at the least to
one overt act of the kind of treason or felony alleged” the rule of at least
two witnesses clearly mandates the court to seek corroboration. Thus
corroboration in the technical sense is mandatory in the case of a statutory
provision[8] however
in the absence of this then it is upon the judge’s discretion to issue a care
warning or not based on the circumstances of the particular case.
c) Analyze the difference between a
requirement for corroboration and a requirement for corroboration warning (care
warnings). Give succinct examples of both.
A requirement
for corroboration is when one cannot be convicted based on the witness of one
person because it would be greatly unfair if the tribunal of fact is not super
sure as the courts take going to prison as a serious thing and thus have upheld
the notion that any risk of the conviction of an innocent person is lessened if
conviction is based upon the testimony of more than one acceptable witness[9].
However there is no general rule requiring corroboration except in statutes
such as the Traffic Act section 143 provides that a person charged with a
traffic offence under the section shall not be liable to be convicted solely on
the evidence of one witness to the effect that in the opinion of the witness,
the person charged was driving the vehicle at such greater speed, thus this
alongside the rest as succinct examples[10].
For the corroboration to amount to evidence it must be relevant, admissible[11],
credible (afforded by a witness who can be believed[12])
, independent(must originate from a source other than the witness[13])
and must be evidence which implicates the accused in a way the specific statute
requires.
A requirement
for warning, at Common law when relying upon uncorroborated evidence in the
technical sense there existed requirement for the judge to issue a care warning
to the jury before receiving testimony from an untrustworthy witness, whose
motive may have been tainted this applies mostly to accomplices testifying on
behalf of the prosecution, children of tender years and victims of sexual
cases. Nowadays there are situations where warning is required as a matter of
law however the court can still convict bearing in mind the full risks of
relying on uncorroborated evidence[14],
in such situations a failure to warn might be a successful ground for appeal.
With regard to an accomplices evidence a warning should be issued because it is
believed that tin submitting evidence on his partner he may try to lie in order
to exonerate himself and convict the other. In recent times there has been no
requirement as a matter of law to issue care warnings however as a matter of
practice the judge retains the discretion to do so. In R v Makanjuola it was held that section 32(1) of the English Act
abrogated the requirement for judges direction viz,. Uncorroborated evidence of
an accomplice and it was held that it is a matter of the judge’s discretion to
issue a warning If he/she sees fit in the appropriate circumstances and that
the courts should be disinclined in interfering with a judges exercise of
discretion
d) Critically analyze the Turnbull
guidelines given by the Court in R v. Turnbull (1977) and explain whether the
caution required rises to the threshold of a corroboration warning.
In R v Turnbull[15]
the question of identification of a suspect arose after a trap had been set in
a letter box, In the Court of appeal Lord Widgery laid down 8 important
guidelines relating to the evidence of allegedly mistaken visual identification
of the accused. They were formulated so as to lessen the danger of convicting
an innocent person.
1st,if
a case depends wholly or substantially on the accuracy of one’s
identification(one or more) which the defense alleges to be a mistake then the
judge is required to warn the jury on the danger of convicting on evidence that
is innacurate/accurate. Further he ought to instruct them as to the reason for such
a warning.
Where
identification is in issue and there is strong prosecution evidence that the
accused was with someone else then the judge should give a special need for
caution, however where none of the witnesses purports to identify the accused
or identification is not in issue then a turnbull
direction is not required.
2nd
the judges must direct the jury to examine closely the circumstances in which
the identification by each witness came to be made. How long did the witnesses
have the accused in their observation/in what light? Was the observation
impeded in any way? Had the witness ever seen the accused before? Is there any
material discrepancy between the description of the accused that was given by
witness and how the accuse looks? All this questions inter alia go to the circumstances of the identification and may
expose specific weaknesses in the identification evidence that may exonerate an
innocent man.
3rd
Recognition is one of the most reliable ways of identifying people by witnesses
who know them however even in this it is still possible for someone to make an
honest mistake therefore it is at least advised that the judge issue a warning
as to the possibilities of witnesses making an honest mistake. As a general
rule the warning must be issued in recognition cases[16]it
is only subject to one rare exception which is that one ought to have spent
atleast an hour with the accused in let’s say the same room, the witness being
sane and sober must also see the accused commit the crime in the same room.
Failure to warn the jury will nearly always be fatal to the conviction[17].
4th
When the evidence of identification is of good quality for example
identification acquired after a long period of examination then it is clearly a
question of the judge’s discretion to issue a direction to the jury to accept
it or not but if he does so then he, must want the jury that even all honest
witnesses can be mistaken[18].
5th
when the evidence used to convict one is of poor quality then the judge is
mandated to withdraw the case from the jury and direct an acquittal unless
there is any corroborating evidence this is because the judge by withdrawing it
from the jury prevents them from acting upon evidence which even if believed,
has by experience shown to be a possible source of injustice[19].
6th In
the aspect of supporting evidence the judge has the mandate to identify to the
jury evidence which he/she adjudges is capable of supporting the evidence of
identification. However it is mandatory that when the judge directs the jury to
some evidence then it is for him to let them know that it is for them to decide
if they accept it, whether it does support evidence of identification[20].
7th
At times an accused may fabricate an alibi and get witnesses to back it out of
fear of his own truthful evidence not being accepted or may make genuine
mistakes on alibi thus when identifying someone based on a rejected/defective
alibi then it is only when the jury is convinced that the fabrication was
solely (and no other reason) intended to deceive them can they use this false
alibi as providing some support to identification evidence however they ought
to be warned that proving that the accused told lies of where he was at the
material time does not by itself prove that he was where the identifying
witness said he was.
The special need
for caution is similar to the warning required in many ways, for example, it is
given so as to make sure the tribunal of fact is super sure before convicting
an accused, the special need arises mostly out of identification issues and it
must be issued even when the identification is good this has a domino effect
and as such raises the requirement for warning especially if it relates to good
identification matters, thereby limiting the judge’s discretion and making him
more inclined to issue warnings.
[2]
R v B (MT)(2000) Crim. LR 181 CA
[3]
Chapter 63
[4]
Page 232 ¶ 1
[5]
Chapter 403
[6]
Chapter 6
[7]
See Francis Mugendi v Republic [2014]
eKLR Criminal Appeal 345 of 2008 : Where he was sentenced on uncorroborated
evidence.
[8]
Lord Reading, C.J, R v Baskerville
[1916] 2 K.B 658
[9]
D.P.P v Hester 1973 AC 296,HL at 315
[10]
Supra pg 2 ¶ 1,2,3,4
[11]
Scarman LJ in R v Scarrott 1978 Q.B
1016, CA at 1021
[12]
R v Thomas 1985 81 Cr App R 331,CA
[13]
R v Whitehead 1929 1 KB, 99, CCA
[15]
[1976] 3 All ER 54
[16]
Sup (n 15)
[17]
R v Ali (2008)EWCA Crim. 1522
[18]
Lord Jane R v Weeder (1980) 71 Cr App
R 228
[19]
Lord Mustill, Daley v R (1993) 4 All
ER 86 at 94
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