CORROBORATION

CONTENTS

1. Introduction
2. Objectives
3. Main Contents

• What is Corroboration?
• No Self Corroboration
• When Corroboration is required
• Forms of Corroboration
• Corroboration of Evidence of young children
• Evidence of Accomplice
• Nature of Warning

4. Conclusion
5. Summary
6. Tutor Marked Assignment
7. Reference/Further Reading

Introduction

It is not obligatory that parties in a civil or criminal proceeding should call every witness and put in all documents in the case before the court. What is of essence is not the quantum of evidence but the quality and weight. Hence a court can convict upon the testimony of a single witness. An example is a positive, direct, voluntary and dogmatic confession.  However, there are certain cases where the law demands a specified number of witnesses to sustain a conviction. This additional evidence in support is “corroboration” and it is the subject matter of this unit. You will learn to explain its meaning, its form, where it is required in Law or as a matter of practice and its application.

Objective

In this unit, students must learn how to explain the term “Corroboration” and know its applicability under the Law of Evidence

Main Content

• What is Corroboration?

Confirmation or support by additional evidence as it is being put by the Black’s Law Dictionary 7th edition) means Confirmation, ratification, verification, or validity of an existing evidence in some material particular from another independent witness or witnesses implicating the accused.

It is the evidence that differs from but strengthens or reinforces other evidence; especially that which needs support. It is a confirmatory or supporting proof of a matter on which evidence of the same fact has already been or will be given.

Functionally, corroboration is essentially confirmatory or supportive evidence in the sense that it proves:

1. That a crime has been committed
2. That the accused is implicated in it

Corroboration shows that the evidence of the witness is probably true and that it is reasonably safe to convict on it. Evidence in corroboration must be independent testimony, which affects the accused by connecting or tending to connect him with the crime: R.v BASKERVILLE [1914] KB 658.

It is not necessary that the independent witness should confirm everything that the accomplice has said or done. All that is required is some independent evidence connecting the accused with the crime.

No Self-Corroboration

A witness cannot corroborate him or herself; otherwise, it would suffice for one to repeat ones story a hundred times in order to get a hundred corroboration of it. (R.v WHITEHEAD (1929) 1 KB 199). In essence, the corroboration must be extraneous and independent of the testifying witness, and must connect the accused to the crime.

 A complaint is no corroboration

The testimony of a witness as to a complaint made to him or her does not amount to a corroboration of the complaint. R. V. Christie, 1914. The evidence must corroborate the remainder of the evidence in some material particular.

• When Corroboration is required

Generally, Corroboration is not of essence so long as the parties are able to adduce enough evidence to warrant a verdict.

However, the statute creating certain offences has demanded corroborative evidence as a precondition for a conviction. In some cases also, the court, as a matter of practice, makes corroboration necessary.

• Corroboration as a matter of Law

The following are examples of instances where corroboration is required by Law:

1. Unsworn evidence of a child. Evidence Act Section 208 and 209
2. Treason; Criminal Code Section 37
3. Concealment of Treason. Section 40, Criminal Code and Evidence Act Section
4. Treasonable felonies Section. 41. Criminal Code, and Evidence Act, section 200
5. Promoting: Inter-communal war Section 42, Criminal Code and Evidence Act Section 200
6. Perjury Evidence Act, Section 198
7. Traffic Offence of Exceeding Speed limit: Evidence Act Section 201
8. Sedition: Evidence Act Section 204, Criminal Code Section 51 (1)(b)
9. Action for Breach of promise for marriage: Section 197 Evidence Act

It should be noted that under the Evidence Act of 2004 Sexual offences were among instances where corroboration is required by law, however, Sexual Offences were omitted from the 2011 Evidence Act

• Where corroboration may be required in practice

Although corroboration may not be a requirement of the law, the court may in exceptional cases, demand some corroborative evidence as a matter of practice.

Such instances include:

1. Evidence of an accomplice
2. Sworn evidence of a young child
3. Matrimonial causes
4. Claimants’ evidence relating to a deceased person

• Forms of corroboration

Corroboration may take any of the following forms:

• Confession or admission by an accused
• Evidence of a witness
• Scientific evidence
• Destruction of material evidence or exhibit
• The position of the complainant coupled with the nature of complaint as in sexual offences.
• Independent evidence or an earlier similar offence by the accused on the same person.

Corroborative evidence may be oral, written or documentary, real, behaviour or conduct or other. It may be direct or as in most cases circumstantial. It may also take the form of a confession, or a lie about a matter or an informal admission. It does not amount to corroboration that the party or witness gave false names or failed, refused, or neglected to give evidence. Unreliable evidence requires no corroboration.

In practice, the judge is required to:

• Examine the     whole    of    the    evidence,    to     see    whether     there    is    any corroboration from the witness of the prosecution
• State what he finds to be corroboration
• Expressly caution him and exercise extreme care in determining whether or not to act on the suspect’s evidence where there is no corroborative evidence

The test is whether there is an independent testimony which affects the accused by connecting or tending to connect him or her with the crime ODHIOERE v STATE (1996).

In R. v CHRISTIE (1914) AC 545, the accused was charged with indecently assaulting a child. The evidence was that after the act, the child went home and told the mother what happened. The mother took the child to the Police and the three of them went to Christie. On meeting Christie, the child pointed to him and said: “this is the man”. He repeated the assault story.

Christie was silent. At the trial, it fell for determination whether the story of the child was corroborated by that of the mother. The House of Lords held as follows:

1. That the mother’s evidence being a repetition of the children’s story does not amount to corroboration in law
2. The statement made by the child in the presence of the police and the accused could not be admitted as part of res gestae because there was a sufficient time lag between the act and the word
3. The silence of the accused did not amount to an admission and a fortiori to corroboration.
4. However, the statement was admitted as evidence of complaint in that it showed lack of consent on the part of the complainant and consistency between the evidence he gave outside the court and in the witness box

In CREDLAND v KNOWLER (1951), the accused was charged with indecent assault on a girl aged10 years. The investigating police officer gave evidence that when the parties met, the accused first denied and later admitted association with the girl. The girl and another girl aged 9 gave unsworn evidence of indecency. The prosecution claimed and the defence denied  that  the  lies  told  by   the accused amounted to corroboration of the girls’ story. The court held that the fact that the accused told a lie may be but is not necessarily corroboration. If a man tells a lie when he is spoken to about a certain offence, the fact that he told a lie at once throws grave doubt upon his evidence. If he afterwards gives evidence, it may be a good ground for rejecting the evidence.

However, the court found other strong corroborative statement including that of the accused which corroborated virtually all the children’s evidence except the indecency. On this the court said, it was not necessary to corroborate the whole of the evidence but only some material particular.

• Corroboration of evidence of young children

One of the thorny issues in law relating to corroboration is the evidence of young children.

A conviction based on the uncorroborated unsworn evidence of a child is bad. The question is whether or not an unsworn evidence of a child can be corroborated by another evidence of another child, sworn or unsworn.

It has been argued that evidence which requires corroboration cannot itself corroborate (R. v MANSER, (1934). This argument was overruled in R v HESTER which held that an unsworn statement can only be corroborated by a sworn statement. In essence the unsworn statement of a child may be corroborated by a sworn statement of another child.

Consistently with this trend of thought, the House of Lord also decided that a sworn evidence of a child can corroborate another sworn evidence of another child (DPP v KILBOURNE [1973] AC 729).

See R. v CAMPBELL, where the court dealt with the issue of sworn evidence of children and more specifically whether the evidence of children who were assaulted would be corroboration for the evidence of  other  children that  were assaulted. As  explained by  Lord Goddard, CJ.

“The unsworn evidence of a child must be corroborated by sworn evidence; if then the only evidence implicating the accused is that of unsworn children, the judge must stop the case. It makes no difference whether the child’s evidence relates to an assault on himself or herself or to any other charges. An example, would be where an unsworn child says that he saw the accused person steal an article’’.

“The sworn evidence of a child need not, as a matter of law, be corroborated, but a jury should be warned (and where there is no jury the judge should warn himself) not that the jury (or the judge) must find corroboration, but that there is a risk in acting on the uncorroborated evidence of young boys or girls, though the jury (or the judge) 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”.

• Activity

Subscribe to the argument whether or not the unsworn evidence of one child can corroborate the sworn evidence of another.

• Evidence of an accomplice

An accomplice is a person who has been connected in the commission of a crime; a person who, on the evidence, may be convicted of the offence with which an accused is charged. He is involved in the crime but he is not charged; rather he is turned a prosecution witness. He is a principis criminis, neither a co-accused nor an agent provocateur.

• An accomplice includes:
• A Participant in the actual crime charged
• A Receiver of property for which the accused is charged with stealing
• A Participant in other crimes  alleged  to  have  been  committed  by  the accused,  where evidence of such other crimes is admissible to prove system or intent or to negative accident.

The following persons may be directly or remotely connected with a crime but are not accomplices:

• An accused, who testifies on his own behalf in a joint trial, and who incriminates a co- accused: Ukut and others v the state (1968).
• A Bribe giver who meets the monetary demand of bribe taker: R v Usman Pategi (1957), Okeke v the Police (1948); Osidola v COP. (1968).
• A person, who takes no part in a crime but is merely an eye witness: Queen v Ukut (1960).

See ENAHORO v THE QUEEN (1965) 1 NLR 125

1. was charged with conspiracy with others to commit treason. O was assigned a responsibility. He subscribed to the oath, but declined his role. He did not report to the police. O was a prosecution witness and it was contended that he was an accomplice. The Supreme Court held that O might have been guilty of an offence under a different section of the code for failure to reveal the plot, but this offence is a separate and distinct offence from the conspiracy charged. Accordingly O is not an accomplice.

The Evidence Act Provision.

The Evidence Act, Section 198 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.

Provided that in cases tried by a jury when the only proof against a person charged with a criminal offence is the evidence of an accomplice uncorroborated in any material particular implicating the accused, the judge shall warn the jury that it is unsafe to convict any person upon such evidence though they have a legal right to do so and in all other cases, the court shall direct itself.

The judge must warn himself of the danger of convicting on the uncorroborated evidence of an accomplice who testifies for the prosecution. Having warned himself the judge may convict upon uncorroborated testimony if he believes the evidence adduced by the accomplice.

Compare Odofin Bello v State (1967) and Malayi v State.

In Odofin Bello v the State, the Supreme Court on the requirement that the judge must warn himself said:

“The judge must ask himself whether or not he believed the evidence of the accomplice and if he believed it, he must warn himself that it was unsafe to convict on it. He must then look for additional statement or evidence not that of an accomplice rendering it probable, that the story of the accomplice is true and that it is reasonably safe to act on it”.

In Malayi v State, the Supreme Court overruled itself and said that warning without more was sufficient.

In the case of R. v OMISADE & ORS. [1964] 1 ALL NLR 233 AT 249, the Supreme court decided that as regards an overt act, it is not necessary that each witness should give evidence as to each overt act. It is sufficient that a number of witnesses are able to give evidence of “snipers,” which all taken together will amount to an overt act.

• Nature of Warning

Where in practice, corroboration is required,  the  court  must  exercise  extreme caution  and must warn itself. The presence or absence of that warning is a determining factor.

If there is corroboration but no warning, the prosecution must fail.

If there is no corroboration but there is a warning, the prosecution succeeds all else being equal. There is no magic formula regarding the warning; and although it is required in practice, it has the force of law. The case of Davis v DPP (1954) gives you a guide as to the nature of warning. In the case, the House of Lords explained that the rule that where a person who was an accomplice gives evidence on behalf of the prosecution, it is the duty of the judge to warn the jury (or himself in the absence of the jury) that, although they (or the judge) may convict on the evidence of the accomplice, it is dangerous to do so unless such evidence is corroborated.

This rule, although a rule of practice, has the force of law. Where the judge fails to warn in accordance with this rule, then, even though there is ample corroboration of the accomplice’s evidence, the conviction will be quashed unless the appellate court is satisfied that no substantial miscarriage of justice has been caused by a breach of the rules.

The warning must be direct and precise. For this reason the court quashed the conviction in R v PRICE (1968). The warning to the jury in that case was:

“When they (the jury) have to take the evidence of an accomplice, they ought to view it with particular care and they ought to look to see whether there is other evidence separate from that of the accomplice which implicates the accused in a material particular…..having had that warning they may accept the evidence of the accomplice and even without corroboration if they think it right”

• Self-assessment example:

“If there is corroboration but no warning, the prosecution fails”. Justify this assertion and its impact on miscarriage of justice.

CONCLUSION

Evidence does not constitute corroboration unless it clearly links the accused with the crime charged and also confirms the evidence of the accomplice as to the material circumstances of the crime. The prosecution must fail where the law requires corroboration and the court finds none or where the corroboration offered is irrelevant to the issue. The kind of corroboration required is not confirmation by independent evidence of everything the accomplice relates but some independent testimony which affects the accused. The uncorroborated evidence of an accomplice is admissible but where he is a prosecution witness, the judge must warn himself that although he may convict on his evidence, it is dangerous to do so unless it is corroborated. There is no magic formula for warning. Warning may advance justice but the effect of failure to warn appears to tilt to the contrary and therefore calls for a review of the law relating to corroboration.

SUMMARY

Corroboration is evidence that differs from but strengthens or reinforces other evidence (especially that which needs support). It is a confirmatory or supporting proof of a matter on which evidence of the same fact has already been or will be given.

It may be required in law or in practice. Admission and confession among others are forms  of corroboration, but lying may not be. You should be careful to dichotomise between “lying” or “mistaking”  and  whether  the  lie  or  mistake pertains to participation in the crime charged or his presence at the scene of crime. Read some of the cases referred to in the text.

TUTOR MARKED ASSIGNMENT

1. When is corroboration required in law and in practice?
2. What is the nature and effect of warning?

REFERENCES/FURTHER READING

1. C. Nweze: Contentious issues & Responses in Contemporary Evidence Law in Nigeria. [Institute for Development Studies: University of Enugu] 2003
2. Eche Adah: The Nigerian Law of Evidence [Maltlhouse Press Limited: Lagos] 2000
3. Justice P.A. Onamade: Documentary Evidence- Cases and Materials [Philade Co. Ltd: Lagos] 2002
4. Cross, R & Wilkins, N. 1971) An Outline of the Law of Evidence 7th 3rd Butterworth. London.
5. The Evidence Act,