Written Submission Tutorial Evidence (c)

The issue is whether Poonas testimony is admissible by the court.

Direct evidence can be defined as evidence which establishes the very fact in issue. For
example, A killed B. C who witnessed the killing gives testimony. Cs statement is direct
evidence to the fact in issue.
Section 59 of the Evidence Act reads that,
All facts, except the contents of documents, may be proved by oral evidence.
Oral evidence means all statement which the court permits or requires to be
made before it witnesses in relation to matters of facts under inquiry.
Section 60 of the Evidence Act describe that all oral evidence in cases must be direct
evidence. Section 60(b) of Evidence Act refers to evidence which could be heard, it
must be the evidence of a witness who says he heard it. Moreover, Section 133A of
Evidence Act deals with the procedure relating to evidence of tender years. If a child
witness found by the court not to understand the nature of oath the section permits the
child to give unsworn evidence provided the child is possessed of sufficient intelligence
and understand the duty of speaking the truth. Section 133A must be read with Section
118 which deals with the issue who may testify. Section 118 of Evidence Act deals
with who may testify. In this section, all persons shall be competent to testify unless the
court considers that they are prevented from understanding the questions ask to them
or giving rational answers to those questions by tender years, extreme old age, disease,
whether body or mind or any other cause of the same kind. However, it is on the court
discretion as to whether the child understands or not the questions and it is on the
courts power to consider the child is not competent to give evidence. Section 133A
also requires the childs evidence must be corroborated or there must be some evidence
implicating the accused before he can be convicted.
This can be seen in the case of Sidek bin Ludan v Public Prosecutor. In this case,
Abdul Malik CJ stated that the proviso to Section 133A specified that a conviction cannot
stand on the uncorroborated evidence of an unsworn child witness. It is insufficient for
the trial court to merely administer a warning on the damages of so convicting as the
amendment requires the evidence of an unsworn child witness shall be corroborated.

In the case of PP v Richard Devadasan, 1 at the time of giving evidence, PW5 was 13
years old. That puts him at only 11 years old at the time incident. On the available
evidence before the judge, the learned judge found out that there was no corroboration
to the evidence of PW5. Both PW5 and PW8 were at the scene of alleged incident. The
learned judge considered that there must be corroboration between PW5s and PW3s
(his mother). The learned judge in this case found a fact that PW5 evidence was never
corroborated. It would therefore unsafe for the learned to act on the uncorroborated
evidence of PW5.
The reason why the evidence of a child requires to be corroborated can be seen in the
case of Chao Chong & ORs v PP, one reason to why childrens evidence must be
corroborated is that the danger that a child may not fully understand the effect of taking
oath.
In this question, Poonas testimonies are admissible. It is direct evidence as Poona was
in the vicinity of the crime scene. Here, she was at the living room watching television. It
is direct evidence as Poona is in the vicinity of the crime scene and she heard Khan and
Sharon fighting as in Section 60(1)(b) as she heard the violent row between them.
Poona was only eight years old at the time of the incident. Thus her testimonies fell
under the discretion of the court as to whether or not she may testify to the court as in
Section 118 of Evidence Act. Under Section 133A, the requirement of any evidence
from a child witness must be corroborated. Therefore, Poonas statement must not
stand alone and must be corroborated because it would be unsafe for the court to use
the uncorroborated statement of a child witness. This is because Poona was only 8 years
old and her evidence must be corroborated as she might not understand the effect of
taking as in the case of Chao Chong & Ors v PP.
In conclusion, Poonas testimony is admissible as it is direct evidence but the
requirement under Section 133A must be followed.

[2005] 3 MLJ 17