New Topic: Corroboration:
Corroboration requirement simply means that the Prosecution has to adduce independent evidence of
the accused's guilt.
1) Definition of 'corroborative evidence':
In the landmark authorities of R v Baskerville 1916 and R v Beck 1982, it was held that 'for evidence to
constitute corroborative evidence, it must be:
a) relevant and admissible;
b) credible;
c) it is evidence coming from an independent source;
d) it must confirm in a material particular way, evidence tending to show not only the commission of
the offence but also the involvement of the accused, i.e it must implicate the accused in a material
particular way.
In the authority of Mahadeo v ICAC 2017, it was held, inter alia, that 'evidence, to be capable of being
"corroboration" in the strict or technical sense, must be relevant, be credible, be independent (i.e
emanate from a source other than the witness requiring corroboration) and implicate the accused in a
material particular.'
Therefore, the essential quality of corroborative evidence is that it must come from an independent and
credible source and its basic function is to implicate the accused in a material particular in the
commission of the offence. Vide: Baskerville's test.
35
A) Full Corroboration Warning is obligatory in 3 situations as a matter of law:
a) Evidence of accomplice testifying on behalf of the Prosecution
b) Evidence of complainants in sexual cases
c) Evidence of children
In the 3 above situations, the Judge, as a matter of law, must give a Full Corroboration Warning. He
must warn the jury of the dangers of acting on the uncorroborated evidence of certain witnesses who
may be referred to as suspect witnesses whose evidence need to be approached with caution.
B) Corroboration Warning is required as a matter of practice in the following situations:
a) An accomplice who is testifying in his own defence;
b) A person who may have an interest of his own to serve in giving false evidence.
In these circumstances, there is no obligation to warn the jury of the danger of acting on the evidence
in question. What is required is that the Court must be warned of the special need for caution.
In the landmark authority of DPP v Subrattee 2010, it was held that:
i) "In general...at Common law, one credible witness is sufficient- vide: DPP v Hester 1973 AC;
ii) With the development of the Common law, the corroboration requirement is said to be required in
such categories of cases which include:
1) the evidence of a complainant in sexual cases;
2) the evidence of an accomplice when called by the Prosecution; and
3) the evidence of children;
iii) Apart from these established categories, the authorities have established the need for a corroboration
warning where the evidence of a witness is suspect and which would include:
1) the evidence of a co-accused;
2) the evidence of mental patients; and
3) the evidence of witnesses who may have improper motives or interests of their own to serve.
Vide: Beck 1982.
36
iv) the principles that have been developed in our case law with regard to the need to call corroborative
evidence, except for those categories where corroboration is required as a matter of law, also relate to
some specific situations. These would include, for instance, the situation where the Court finds that it is
unsafe to convict on the testimony of a sole witness whose evidence is unsatisfactory and could have
been supported by independent testimony of an available witness;
v) the SC reiterated the case of Paruit v R 1968 where it was held that "...there is no rule of law that
requires corroboration of the evidence of a single witness and a Magistrate is perfectly entitled to
convict in appropriate cases on the evidence of that witness...". It was only after the Court had noted
some disquieting features in the facts of that case...that it concluded that it was unsafe to convict in the
absence of corroborative evidence.
A) Full Corroboration Warning is obligatory in 3 situations as a matter of law:
1) Full Corroboration Warning for the evidence of an accomplice testifying on behalf of the Prosecution:
i) Rule: The testimony of one credible witness is sufficient and a Court of law can always act on the
uncorroborated evidence of a single witness, i.e an accomplice, if he is a witness of truth and the Court
is satisfied with his evidence. I support this answer with the authorities of Paruit v R 1968; DPP v Subrattee
2010;
ii) There is no rule of law which renders the evidence of an accomplice inadmissible. In the authority of
Romance v R 1987, it was held that 'an accomplice is a competent witness except when he is both indicted
and tried with the defendant. There is no rule of law which renders the evidence of an accomplice- even
one who has been charged but not tried inadmissible'.
Exception:
However, as pointed out in the case of Ponnoo v R 1990, "...there are certain categories of evidence which
were by their very nature, potentially unreliable and in respect of which to avoid the serious danger of
wrong conviction, special warnings and directions had to be given to juries".
37
In the case of Baloram v The Queen 1957, it was held that "...the practice of the Judge and also the
Magistrate in Mauritius, warning the jury of the dangers of acting on the uncorroborated evidence of an
accomplice has the force of a rule of law and if this is not done, the conviction can be quashed on appeal".
In the case of Suddason v State 2011, it was held that:
i) "An accomplice is a competent witness for the Prosecution unless he is both indicted and tried with the
defendant;
ii) the Court has a discretion, to be judiciously exercised, to exclude an accomplice's evidence if it is in the
interests of justice to do so, i.e if it appears to the Judge that there is a real danger that because of
powerful inducements the accomplice will give false evidence against the accused in the case in order to
curry favour with the Court or otherwise;
iii) the Court, if sitting without a jury, will judiciously exercise that power where, before accepting
accomplice evidence. it has warned itself of the dangers of acting on his uncorroborated evidence;
iv) if sitting without a jury, further than warning the jury of those dangers, the Court must also point out
those parts of the evidence (if any) which are capable of corroborating the evidence of the accomplice.
Vide: R v Pipe 1967; Sheriff v State 1994.
Read: DIP C.P v State 2021; Marthe v State 2017
In the authority of Boyjoonauth v State 2017, the Appellate Court reiterated the case of Davies v DPP
1954 which held that accomplies are "...persons who are particeps criminis in respect of the actual crime
charged, whether as principals or accessories before or after the fact or persons committing, procuring
or aiding and abetting. It was also held that....in particular decisions have been held to be accomplices
for the purpose of the rule, viz
a) receivers have been held to be accomplices of the thieves from whom they receive goods on a trial of
the latter for larceny;
b) when X has been charged with a specific offence on a particular occasion and evidence is admissible
and has been admitted (under the Similar Fact Evidence rule).
38
It is clear from the above that a Magistrate or a Judge must give a full corroboration warning to the jury
when acting on the sole and uncorroborated evidence of an accomplice, whereby the jury must be
warned that there may be obvious motives for an accomplice not to tell the truth and falsely implicate
others and for that reason it is dangerous to act on the accomplice evidence. It will then be necessary
for the Magistrate or Judge to explain what corroboration is and identify that parts of the evidence
which are capable of corroborating the accomplice's evidence.
In the recent authority of State v Rudolf Derek 2022, the SC held, inter alia, that:
i)
In Dussaruth v The State 1996 on appeal, it was held that “It is trite law that the evidence of an
accomplice can be acted upon provided the trial Judge directs his mind to the risk such evidence
carries in view of the type of witness who is testifying…Consequently, the two witnesses fully
understood, as the learned Judge rightly found, in our view, that they had been granted immunity;
ii)
Consequently when they were called by the prosecution, the latter had complied with the rule laid
down in R. v Pipe 1967 and R. v Turner 1975. The rule is explained as follows in Criminal Evidence
2nd ed:
“The rule would therefore appear to be that:
(a) an accomplice is a competent witness for the prosecution unless he is both indicted and tried
with the defendant;
(b) the judge has a discretion to exclude an accomplice’s evidence if it is in the interests of justice
to do so, e.g. if it appears to the judge that there is a real danger that because of powerful
inducements the accomplice will give false evidence against a co-defendant in order to carry favour
with the Court.
If an accomplice does give evidence, the judge must warn the jury of the dangers of acting on his
uncorroborated evidence. He must also point out those parts of the evidence (if any) which are
capable of corroborating the evidence of the accomplice.”
In the case at hand, the Court was fully alive that all of witness Madarbacus testimony is accomplice
evidence and the Court has given itself the necessary cautionary warning to that effect, whilst assessing
and dealing with the evidence ushered by him.
39
Note: The fact that a criminal offence in Mauritius is heard, most of times, before a Magistrate of the
Intermediate Court, this implies that the rule of corroboration warning will have to be applied by the
Magistrate, when sitting alone, since he acts both as Judge of fact (Jury) and Judge of law (Judge).
In the authorities of Geemul v State 1993 and Parsooramen v State 1993, it was held that "...the Judge
or Magistrate must make it clear that he did give himself a full corroboration warning and that it cannot
be assumed he did so when the judgment is silent. Therefore, it must be reflected on the Court record.
However, in the case of Oree v State 1998, it was held that 'a Magistrate who is a trained lawyer is
presumed to have given himself a warning. It is only if the court record indicates that the Magistrate
overlooked the fact that the witness was an accomplice, i.e a suspect witness for whom a full
corroboration warning must be give, then the Appellate Court should interfere'.
Note: Section 184(2)(f)(iii) of the Courts Act provides that an accomplice (i.e a person charged in the
offence) is liable to be cross-examined as to his bad character, by a person charged in the same proceeding
when the accomplice gives evidence against that person charged (or supports the prosecution's case),
whether during examination-in-chief or cross-examination.
Thus, when the accomplice gives evidence that supports the prosecution's case, he is also liable to be
cross-examined as to his bad character. But it is only relevant to the issue of credibility and not of guilt.
40
2) Full Corroboration Warning for the evidence of sexual complainants:
Rule: The testimony one credible witness is sufficient. A Court of law is entitled to act on the sole and
uncorroborated evidence of a witness who is a victim in a sexual offence where the Court finds the
witness truthful and has addressed its mind to the danger of acting on the uncorroborated evidence of
the victim. Vide: Isserheeah v The State 2022 which reiterated the case of Saman v The State 2004.
In the recent authority of Andy v State 2021, the Appellate Court reiterated the oft-quoted authority of
Saman v State 2004 where it was held that “the general rule is that a Court is entitled to act on the sole
and uncorroborated evidence of a witness who is a victim in a sexual offence case where the Court finds
the witness truthful and has addressed its mind to the danger of acting on uncorroborated evidence”.
Exception: As pointed out in the case of Ponnoo v R 1990, “...there were certain categories of evidence
which were by their very nature, potentially unreliable and in respect of which to avoid the serious danger
of wrong convictions, special warnings and directions had to be given to juries”.
Therefore, in sexual offence cases, a full corroboration warning (FCW) must be given to the jury as a
matter of law, warning them of the danger of acting on the uncorroborated evidence of a sexual
complainant since she is a suspect witness whose evidence must be approached with caution.
In the case of R v Marks 1963, it was held that the absence of a full corroboration warning was held to be
fatal to a conviction for unlawful sexual intercourse with a girl under 16.
In the case of Rajbally v State 2016, the Appellate Court referred to the case of Teeluck v State 2014
where it was held that:
a) “...it is apposite that we should Magistrates that it is not sufficient for them to quote the principles
relating to acting on the sole testimony of complainants in sexual cases as a I;
b) they must address their minds to the real risks of a miscarriage of justice and the rule relating to the
requirement of corroboration must not be rendered nugatory because of an over-readiness to act on
the uncorroborated evidence of complainants in sexual cases;
c) the Magistrate must take into consideration:
1) the circumstances surrounding the commission of the alleged offence;
2) the motivation of the complainant;
3) her past conduct;
4) her propensity to lie or to invent as evidence by contradictions and inconsistencies;
41
5) her psychological make-up; and
6) her previous involvement in sexual behaviour,
are only a few of the matters that may have to be probed into before a pronouncement can be made as
to whether the Court can or cannot act on her uncorroborated testimony”.
iii) It is also important to point out that in the case of Gokhool v R 1965, it was held that ‘the Judge or
Magistrate must not only warn the jury in a sexual offence of the danger of convicting on the
uncorroborated evidence of the complainant but:
1) he must also explain to the jury and to himself what is meant by corroboration; and
2) refer to the evidence which constitutes it.
In the case of R v Baskerville 1916, it was held, inter alia, that “...the essential quality of corroborative
evidence is that it must come from an independent and credible source and its basic function is to
implicate the accused in a material particular way in the commission of the offence”.
The rule is that where a single witness, i.e sexual complainant, is credible and worthy of belief, the trial
Court can act on her sole testimony. However, if there are serious disturbing features in the Prosecution’s
evidence and there is highly questionable nature of the complainant’s version, corroborative evidence
must be adduced.
Instances where evidence amounts to corroborative evidence in a sexual offence case:
A) Sexual complaint made shortly after the occurrence of a sexual offence, i.e a recent sexual complaint
B) Corroborative material could be found in a document or thing such as blood stains on clothes or
injuries suffered by the victim of a rape
C) Distressed condition of a sexual complainant can amount to corroboration
42
A) Sexual complaint made shortly after the occurrence of a sexual offence:
1) Rule: As pointed out in the case of R v Baskerville 1916 and Mahadeo v ICAC 2017, “...the essential
quality of corroborative evidence is that it must come from an independent and credible source and its
basic function is to implicate the accused in a material particular way in the commission of the offence.”
2) Corroborative evidence must be extraneous, i.e independent to the witness who is to be corroborated.
This is why the complaint made by the victim of a sexual offence cannot amount to corroboration of
her evidence, as upheld in the case of R v Whitehead 1929. Moreover, in the case of R v Evans 1925, it
was held that ‘evidence of a sexual complaint made shortly after the occurrence of a sexual offence was
held not to constitute corroborative evidence since it did not come from an independent quarter’.
3) In the authorities of Sobah v R 1971 and R v Lilyman 1896, it was held that ‘the only probative value
of a recent sexual complaint is to:
a) show consistency (credibility) of the conduct of a sexual complainant;
b) rebut a defence of consent.
In the case of Gooraiah v R 1989, it was held that ‘particulars of a recent sexual complaint are admissible
to negate consent’.
At this juncture, it is apposite to refer to the recent authority of Mungar v State of Mauritius 2020 where
it was held, inter alia, that:
a) “...the trial Court improperly considered Mrs M’s version (the godmother of the victim) as corroborative
evidence although “in trials for rape and other sexual offences, the fact that the complainant made a
complaint shortly after the alleged offence, together with the particulars of such complainant, may be
given in evidence by the prosecution, not as evidence of the facts complained of, but as evidence of the
consistency of the conduct of the complainant with the complainant’s evidence....”;
b) the victim’s evidence could not in law amount to a recent complaint as it was not made at the first
available opportunity after the event and as it was not spontaneously made to Mrs. M.
c) the learned Magistrates therefore failed to bear in mind the well-established dictum by Lord Reid in the
case of Baskerville 1916, namely, “...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 us, which confirms in some material particular not only the
evidence that the crime has been committed, but also that the prisoner committed it”.
43
4) For a complaint to be admissible as being a ‘recent complaint’ in sexual cases, the complaint must be
voluntary and spontaneous, i.e it is an unassisted and unvarnished story of what happened.
In the case of Seeneevassen v State 2004, the Appellate Court referred to the case of R v Osborne 1905
where it was held that ‘a recent sexual complaint can constitute independent corroborative evidence:
a) “the sexual complaint must be made at the first available opportunity;
b) the complaint must be voluntary and not elicited by questions of a leading, inducing or intimidating
character;
c) the fact that the complaint was made in response to a question will not affect the voluntariness of
the complaint so long as the question merely anticipates a complaint which the complainant was about
to make.
In the case of Bansi Dinsor v State 1994, it was held that ‘...the Magistrates have wrongly considered the
complaint made by a victim in a sexual offence as corroboration. It is an elementary principle of the law
of evidence that such a complaint cannot amount to corroboration. A complaint in relation to a sexual
offence is exceptionally admitted to show the consistency of the evidence of the alleged victim and this
is a departure from the well-established principle that a party cannot rely on a previous consistent
statement to strengthen his testimony in Court. But the complaint cannot amount to corroboration
because it does not come from a source independent of the alleged victim.’
B) Corroborative material could be found in a document or thing such as blood stains on clothes or
injuries suffered by the victim of a rape or sexual offence:
1) Rule: The essential quality of corroborative evidence is that it must come from an independent and
credible source and its basic function is to implicate the accused in a material particular in the commission
of the offence
2) The corroborative evidence need not be direct evidence that the accused committed the offence, it is
sufficient if it is merely circumstantial evidence of his connection with the crime.
Circumstantial evidence is evidence of “relevant facts” from which the existence or non-existence of
facts in issue may be inferred. Circumstantial evidence “works by cumulatively, in geometrical
progression, eliminating other probabilities”. Vide: DPP v Kilbourne 1973; DPP v Ebrahim 2017.
44
It is also important to note that before drawing the inference of the accused’s guilt from circumstantial
evidence, the Court must be sure that there are no other co-existing circumstances which can weaken or
destroy that inference.
3) In the case of R v Trigg 1963, it was held that ‘corroborative material could be found in a document or
thing such as blood stains on the clothes, or the injuries suffered by a rape victim”.
Question: Whether the injuries found on the complainant would amount to corroborative evidence?
When on a charge of rape, the defence is consent, then matters which merely prove intercourse do not
constitute corroboration. In such a case, corroboration consists of evidence which negates consent and
also implicate the accused.
As such, injuries on the complainant alone would not amount to corroboration as they need not have
been caused by the accused.
However, the nature of the injuries found on both complainant and the accused may constitute
corroboration. In the landmark case of Baichoo v R 1979, it was held that “....corroboration must be
evidence which implicates the appellant (then accused) by negating consent. Even injuries on the
complainant alone would not suffice, as they need not have been caused by the appellant (then
accused). There is however corroboration in the nature of the injuries found on both parties after the
event as those injuries show that the girl put up a brave fight”.
Question: Whether medical evidence showing that the complainant had sexual intercourse at the time
consistent with the allegations amount to corroborative evidence?
It is well established that where the charge is rape, the corroborative evidence must confirm in some
material particular that intercourse had taken place and implicate the accused in the commission of the
offence and that it has taken place without the woman’s consent.
In the case of James v R 1970, it was held that ‘medical evidence showing that the complainant had
sexual intercourse at a time consistent with the allegations was incapable of affording corroboration
off evidence of rape. This is so because it did not confirm any more than an act of sexual intercourse
and in particular, it did not offer any confirmation of the identity of the person involved, i.e the accused
or the alleged lack of consent’.
45
C) Whether distressed condition of a sexual complainant can amount to corroboration evidence:
Rule: It is well settled that for evidence to amount to corroborative evidence, it must come from an
independent and credible source and its basic function is to implicate the accused in a material particular
in the commission of the offence.
As such, the distressed condition of a sexual complainant does not amount to corroboration evidence
since it does not come from an independent quarter.
However, the visible distress (i.e observed) of a sexual complainant which is witnessed independently can
constitute corroboration.
2) In the case of Pierrus v R 1989, it was held that ‘the evidence as to a complainant’s distressed condition
may amount to corroboration such as where the distressed condition is observed as opposed to being
proferred and where there is doubt as to it not being feigned (i.e it must not be simulated).
In the case of Bharosa v State 1999, it was held that a trial Court had to be satisfied that the distress was
not only genuine but that it was referable to what the complainant asserted the accused had done to her.
However, in the case of Boudeuse v State 2003, it was held that it was not proper for the Court to attach
much weight to the complainant’s distressed condition. The Court in Boudeuse reiterated the case of R v
Redpath 1962 where it was held that ‘the jury should be told (directed) that they should attach little, if
any, weight to that evidence because it is all part and parcel of the complaint. The girl making the
complaint might well put on an act and simulate distress.
Thus, a special direction is often needed where evidence of the sexual complainant’s distressed condition
is relied on by the Prosecution in sexual cases.
In the recent authority of Hemraz v State 2020, the Appellate Court observed that:
i) the learned Magistrate was alive to the principle that the testimony of witness no. 5 (the sexual
complainant) falls within the category of evidence which requires to be treated with caution. The record
shows that the learned Magistrate warned herself of the danger of acting on the uncorroborated evidence
of a victim of an indecent act and she chose to rely on the version of witness no. 5 whom she found to be
a truthful and consistent witness;
ii) the Appellate Court referred to the case of Pierrus v R 1990 where the trial Magistrates found sufficient
corroboration in the testimony of a witness who described the distressed condition of the complaint. The
Judicial Committee of the Privy Council felt considerable doubt as to whether evidence of the
46
complainant’s distress was capable of amounting to corroboration in the technical sense of affording
confirmation of the complainant’s evidence from an independent source. It was held that even if there
was a technical misdirection in the reference to corroboration, it occasioned no miscarriage of justice.
In the present matter (in the case of Hemraz), the Appellate Court noted in the observations of the
learned Magistrate that she laid stress upon the fact that the grandmother saw witness no. 5 in a
distressed condition which in the light of the authority of Pierrus (supra) certainly cannot amount to
corroboration of the version of witness no. 5 as to the sexual assault perpetrated against her. Such
evidence of distressed condition could only be relevant to show consistency in the conduct of witness
no. 5 after the incident and nothing more.
The Appellate Court also stated that the above observations of the learned Magistrate are to some extent
misleading in the sense that it appears that she concluded that the evidence of witness no. 6(the
grandmother of the victim) as to the distressed condition of witness no. 5 (victim herself) corroborated
the latter’s version of facts but this apparent technical mistake will not amount to a major misdirection as
to warrant the quashing of the judgment.
A judgment of the lower Court must make it clear that the Magistrate did give himself the necessary
corroboration warning and that it cannot assumed that he did so when the judgment is silent. The Court
record must reflect such intimation, i.e the Magistrate must direct his mind as to the real risks of a
miscarriage of justice. This is made explicit in the cases of Parsooramen v State 1993 and Geemul v State
1993
Read: Hossenee v State 2020; Mungar v State 2020
In the recent authority of Mooneeram v The State 2022, the SC, on appeal, observed that:
i)
It is not apparent from the judgment of the learned Magistrate that she had given herself the
warning in respect of corroboration and that she was fully alive to the danger of acting on the
uncorroborated evidence of the complainant….Although there is no statutory requirement for
corroboration, it is our considered view that the present matter, which involved the evidence
of a complainant in a sexual case, is one of the situations wherein a corroboration warning is
required. Reference was made to the case of Geemul v The State 1993 where it was held that “it
is trite law when a Judge or Magistrate is sitting alone, and a suspect witness gives evidence,
the trial Court should bear in mind the dangers of acting on the uncorroborated evidence of
such a witness;
47
ii)
It is not disputed that the learned Magistrate was fully entitled, at the end of the day, to act on
the sole evidence of the complainant and to convict the appellant but the record should have
reflected that the learned Magistrate had given herself the corroborative warning. She should
have made it clear that she was fully conscious about the danger of acting on the
uncorroborated evidence of the complainant in the present case which is of a sexual nature
although it may well be that the Magistrate who is a qualified lawyer, may not have overlooked
the elementary principles of the law of evidence applicable to the testimony given by a
complainant in a sexual case.
In view of the above irregularities, the SC, on appeal, declared the trial to be a nullity and quashed the
conviction and sentence.
Note: In the case of R v Chance 1988, it was held that:
i) A corroboration warning will be required if the commission of the offence is disputed;
ii) where the identity of the offender in the sexual offence is in issue, a Turnbull direction will suffice
and no separate Full corroboration warning as to the sexual nature of the offence called for;
iii) where the commission of the offence itself is in issue, the Full Corroboration warning must always be
given.
48
3) Full Corroboration Warning of the evidence of children:
i) Rule: The testimony of one credible witness is sufficient and a Court of law can always act on the
uncorroborated evidence of a child of tender years if he is a witness of truth and reliable and the Court is
satisfied with his evidence. I support my answer with the authority of DPP v Hester 1973 and DPP v
Subrattee 2010.
ii) Exception: As pointed out in the case of Ponnoo v R 1990, "...there are certain categories of evidence
which were by their nature, potentially unreliable and in respect of which to avoid the serious danger of
wrong conviction, special warnings and directions had to be given to juries".
iii) The need for a full corroboration warning with respect to the uncorroborated evidence of a child is
a rule of law. The Magistrate or the Judge must always warn the jury of the danger of acting on the
uncorroborated evidence of children of tender years. They are young witnesses with a risk of
unreliability inherent in the age of young witnesses and the danger of childhish imagination and
collusion. I support my answer with the authorities of R v Sawyer 1959 and Saman v State 2004.
Thus, a Court of law is entitled to act on the uncorroborated evidence of a minor child where the Court
has warned itself of the dangers of acting upon his uncorroborated evidence. Moreover, the Court must
also explain the jury what is meant by corroboration and refers to the evidence which constitutes it.
The Magistrate or the Judge must make it clear that he did give himself a full corroboration warning and
that it cannot be assumed he did so when then judgment is silent. The court record must reflect such an
exercise- vide: Vengrasamy v State 2009.
Note:
a) The unsworn evidence of a child cannot corroborate another unsworn child- vide: DPP v Hester 1972
b) However the evidence of a sworn child witness can be corroborated by the evidence of a credible
unsworn child witness and vice-versa- Vide: Manooah v R 1960
49
B) Corroboration Warning (Special Need of caution) required as a matter of practice:
1) A corroboration warning is required as a matter of practice for evidence of accomplices in their own
defence:
i) An accomplice who is a co-accused may incriminate another co-accused when giving evidence in his
own defence. It is considered that in these circumstances the trial Judge / the trial Court should give the
jury a direction to treat such evidence with care, in so far as it implicates a co-accused in the offence
charged, since the testifying witness may have an interest of his own to serve by giving false evidence.
However, if the Magistrate or the Judge fails to warn the jury, a conviction will not necessarily be quashed
on appeal, it will depend on the facts of the case.
ii) Mutual Corroboration by suspect witnesses:
Rule: One accomplice is capable in law of corroborating the evidence of another accomplice.
Exception: Mutual corroboration of accomplices is not possible where both suspect witnesses are
accomplices, being participe criminis with the accused in the crime with which he is being charged. This
was held in the cases of Manooah v R 1960 and Makoon v R 1979.
Read: Beekoo v State 1994
2) A corroboration warning is required as a matter of practice for evidence of a person who has an
interest of his own to serve in giving false evidence:
In the case of Rambhujun v Queen 1976, it was held that there is a rule of practice that where a person
may have a purpose of his own to serve in giving false evidence, the warning against uncorroborated
evidence, i.e special need for caution, should be given.
50
Sub-Topic: Evidence of visual identification:
- Turnbull direction
- Identification parade
- Dock identification
1) In the landmark authority of R v Turnbull 1977, the Court laid down guidelines which are to be
observed by trial Judges and Magistrates when identity of the accused is in issue:
i) Warn the jury of the special need for caution before convicting the accused where his defense
depends solely or substantially on mistaken identification, since a mistaken witness can be a convincing
one and that a number of such witnesses can all be mistaken;
ii) the Presiding Judge to direct the jury to examine closely the quality of the identification evidence, i,e
the circumstances in which the identification came to be made by the Prosecution witness:
a) How long did the witness observe the accused at the time of the commission of the offence;
b) At what distance, in what light, how long was it between the original observation and the subsequent
identification;
iii) the Judge should remind the jury of the specific weaknesses in the identification evidence;
iv) where the evidence of identification is poor, i.e when it depends only on a fleeting glance or fleeting
encounter or longer observations made under difficult conditions, the Presiding Judge should withdraw
the case from the jury and direct an acquittal.
2) In Mauritius, the authority of Parbhoonath v R 1982 settled the law on visual identification where it
was held that:
i) there is a special need for caution in assessing the evidence coupled with the need to examine its
quality closely where that evidence is unsupported and consists of a fleeting glance or of longer
observations made under difficult conditions;
ii) when the quality of the evidence is good, the jury can safely be left to assess its value, even in the
absence of other supporting evidence, once an adequate warning has been given about the special need
for caution.
51
In the case of Hunkar v State 1996, it was held that "...it would be in the most exceptional circumstances
that a conviction based on uncorroborated identification evidence would be sustained in the absence of
an appropriate warning and such exceptional circumstances included the fact that the evidence of the
visual identification was of exceptionally good quality.
Therefore, the Court must be shown to have properly warned itself of the risks involved and satisfied
itself of the Quality and Reliability of such identification evidence.
At this stage, it is apposite to refer to the recent authority of Soonarane v State 2021 where it was held
that:
i)...we must reiterate that the guidelines derived from R v Turnbull 1977 are that in disputed identity
cases, where the case against an accused party depends wholly or substantially on the correctness of one
or more identifications, the Judge or Magistrate should:
a) warn himself of the special need for caution in relying on the correctness of the identification;
b) make some reference to the possibility that a mistaken witness could be convincing;
c) examine closely the circumstances of the identification, i.e for how long the witness saw the accused,
from what distance, in what light, whether his or her observation was impeded, whether the witness
had seen the accused before and, if so, how often, did the witness have any special reason for
remembering the accused, and how long was there between the original observation and the
subsequent identification;
ii) the key question must therefore be: what is the quality of the identification evidence, so that, as
confirmed in the case of Latona v State 2016 "where a magistrate is acting both as Judge and jury, he
need not say specifically in his judgment that he has given himself the caution, directed his mind to the
reasons for the caution and gone exhaustively through the rest of the guidelines. It is enough if it is
apparent from his analysis of the facts, of any contradictions and of the submissions of counsel on
identification issues that the learned Magistrate directed himself fully on the substance of the Turnbull
guidelines"- vide: Parboonath v R 1982.
Read: Youcouable v State 2022
52
Note:
1) Identification parade:
In the case of Fokeerbux v State 2014, the Appellate Court reiterated the privy council case of Terrell
Neilly v The Queen 2012 UKPC where it was held, inter alia that:
i) " the JCPC reiterated the importance of holding an identification parade and drew attention to the
dangers and 'undesirability in principle' of acting upon a dock identification. The JCPC pointed out that
the purpose of an identification parade is 'to ensure that the identification of a suspect by a witness
takes place in circumstances where the recollection of the identifying witness is tested objectively
under safeguard by placing the suspect in a line made up of like-looking suspects";
ii)...the normal and proper practice should be to hold an identification parade, and that in any case
where a dock identification is admitted the judge should warn the jury of the undesirability in principle
and dangers of a dock identification...;
iii)...identification parades offer safeguards which are not available when the witness is asked to
identify the accused in the dock at his trial (dock identification). An identification parade is usually held
much nearer the time of the offence when the witness's recollection is fresher. Moreover, placing the
accused among a number of stand-ins of generally similar appearance provides a check on the accuracy
of the witness's identification by reducing the risk that the witness is simply picking out someone who
resembles the perpetrator- vide: Holland v HM Advocate 2005 UKPC
2) Dock identification:
i) Although dock identification is not in itself automatically inadmissible, as stated in Aurelio Pop v The
Queen 2003 UKPC, it can, however, only be exceptionally admitted and before such evidence is admitted,
the inherent weaknesses of a dock identification and the danger of relying on same in the absence of any
identification parade, must be addressed;
53
ii) In the case of Terrell Neilly v The Queen 2012 UKPC, the JCPC pointed that the need for caution is even
more pronounced in the case of a dock identification....In the case of dock identifications, however,
there is an added and separate need for caution, arising from the circumstances inherent in dock
identification..."
In the case of Maxo Tido v The Queen 2011 UKPC, the JCPC highlighted the principles to be adhered to,
if dock identification is to be admitted:
i) " A trial Judge will always need to consider, however, whether the admission of such testimony,
particularly where it is the first occasion on which the accused is purportedly identified, should be
permitted on the basis that its admission might imperil the fair trial of the accused;
ii) where it is decided that the evidence may be admitted, it will always be necessary to give the jury
careful directions as to the dangers of relying on that evidence and in particular to warn them of the
disadvantages to the accused of having been denied the opportunity of participating in an identification
parade, if indeed he has been deprived of that opportunity;
iii) the jury should also be reminded of the obvious danger that a defendant occupying the dock might
automatically be assumed by even a well-intentioned eye witness to the person who had committed the
crime with which he or she was charged. Relevant circumstances will always include consideration of why
an identification parade was not held. If there was no good reason not to hold the parade this will militate
against the admission of the evidence".
Note: Consequences of corroborative evidence being procurable but not being called by the
Prosecution:
a) Where the evidence of a sole witness called by the Prosecution on a particular issue was not entirely
satisfactory and where corroborative evidence was procurable but was not called by the Prosecution, the
Court would not make any favourable assumption in favour of the Prosecution. Vide: Botte v R 1968;
b) It is for the Prosecution to decide whether they should call one or more witnesses to corroborate the
first one. If there are disturbing features in the evidence of the complainant, or strong evidence is adduced
on behalf of the defence, the failure to call corroborative evidence by the Prosecution which is available
may lead to a conviction being quashed on appeal.
54
In the case of Rajbally v State 2016, it was a case of sexual complaint. The mother of the complainant was
on the list of witnesses but the Prosecution chose not to call her as a supporting witness. It was held by
the Appellate Court that the Prosecution did so at its own risks and perils and the learned Magistrate
ought to have been aware that some supportive evidence was available but was not called by the
Prosecution.
In the recent authority of Delaire v The State 2023, it was held, inter alia, that:
i)
there was no obligation on the prosecution to call any corroborating witness. This issue is expounded
upon in the cases of Paruit v The Queen 1968 and Joomeer v The State 2013 respectively as the
following two extracts illustrate:
“Apart from the cases specifically provided for by statute or by long established rule of practice there
is no rule of law that requires corroboration of the evidence of a single witness and a magistrate is
perfectly entitled to convict in appropriate cases on the evidence of that witness and nothing in this
judgment should be construed as being an indication to the contrary. On the other hand where the
evidence of the witness called has been strenuously challenged and certain allegations made
against him, we consider that it is highly desirable that corroborative evidence, if available, should
be adduced”,
ii) And from Joomeer:
“The question which has also arisen is whether the appellant had a fair trial for the reason that
Inspector Jugmohan and witness Chuttoo were not called. The short answer to this is that there was
no duty on the prosecution to call them. If the defence feels the need to obtain some evidence from
a witness on the list of witnesses for the prosecution whom the latter does not call, it is open to the
defence to move to cross-examine those witnesses: see State v Veeren 2010”
55
Note: The evidential issue which arises is whether the lies told by an accused party can constitute
corroborative evidence for the Prosecution
An Accused's out-of-court statements- Lies told by the accused:
Out-of-Court statement of the accused = Admission of facts + Self-serving part
Mixed statement = Incriminating parts + Exculpating parts
i) The conduct of an accused on previous occasions may in certain circumstances amount to corroboration
of the case against him. These may have the effect of confirming the evidence to be corroborated in a
material particular, implicating the accused in the offence charged;
ii) An Out-of-Court lie of the accused can amount to corroboration. In the case of R v Lucas 1981, the
Court set out 4 conditions to be satisfied:
a) the lie must have been deliberate;
b) the lie must relate to a material issue;
c) the motive to lie must be a realisation of guilt and a fear of the truth;
d) the statement must clearly be shown to be lie by evidence other than that of the person who is to be
corroborated.
In the recent authority of Perseeddoss v The State 2020, the Appellate Court observed that:
i) in the case of R v Goodway 1994, it was held that “whenever lies are relied on by the prosecution, or
might be used by the jury, to support evidence of guilt as opposed to merely reflecting on the
defendant’s credibility, a Judge should give a full direction in accordance with R v Lucas 1981 to the
effect that a lie told by a defendant can only strengthen or support evidence against that defendant if the
jury are satisfied that:
a) the lie was deliberate;
b) it relates to a material issue; and
c) there is no innocent explanation for it;
ii) the jury should be reminded that people sometimes lie, for example, in an attempt to bolster up a
just cause, or out of shame, or out of a wish to conceal disgraceful behaviour”.
56
It is therefore clear that the Lucas Warning is only required if there is a danger that the jury may regard
that conclusion of a lie as probative of his guilt of the offence.
Read: Lacloche v State 2019.
Note: The same 4 conditions referred above will apply for a lie told by the accused during his trial for
the evidence to be considered as corroborative evidence.
In the authority of Dookee v DPP 2010, it was observed that as regards to lies spoken by Dookee as
corroboration and lucas directions, the authority of R v Lucas 1981 set out the guidelines to decide this
issue. It was held that:
i) "To be capable of amounting to corroboration, the lie told out of court must:
a) first of all, be deliberate;
b) secondly, it must relate to a material issue;
c) thirdly, the motive for the lie should be a realization of guilt and a fear of truth;
ii) the jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt
to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their
family;
iii) Fourthly, the statement must be clearly shown to be a lie by evidence other than that of an accomplice
who is to be corroborated, that is to say by admission or by evidence from an independent witness";
iv) "A Lucas direction is not required in every case where a defendant gives evidence on a number of
matters, and the jury may conclude in relation to some matters at least that he had been telling lies. The
warning is only required if there is a danger that they may regard that conclusion as probative of his guilt
of the offence which they are considering;
57
v) A Lucas direction will usually be required, namely:
1) where the defence has raised an alibi;
2) where the judge considers it desirable or necessary to suggest that the jury should look for support or
corroboration of one piece of evidence from other evidence in the case, and amongst that other evidence
draws attention to lies told by the defendant;
3) where the prosecution seek to show that something said, either in or out of court, in relation to a
separate and distinct issue was a lie, and to rely on that lie as evidence of guilt in relation to the charge
which is sought to be proved…
2) For an Alibi of an accused party:
i) The fabrication of a false alibi can amount to corroboration provided that the jury is satisfied that the
falsity has not arisen from a mistake and that the fabrication has not come through panic or stupidityvide: R v Thorne 1978;
ii) The accused's motive to lie is to avoid detection or to fabricate a defence, then the trial Court can treat
the lie as corroborating other prosecution evidence and implicating the accused in the offence charged.
iii) A Lucas warning will be required where there is a danger that the jury may regard the false alibi as
probative of the accused's guilt.
iv) It bears reminding that when an accused is putting forward an alibi, then it is for the Prosecution to
negate or rebut that alibi and not for the defence to substantiate it.
In the recent authority of Youcouable v State 2022, it was held that:
i) Now, it is trite law that, once an alibi is raised by the defence, it is for the prosecution to disprove that
alibi- vide: Alcindor v The Queen 1963; Toory v R 1990;
ii) in the case of Foollee v State 2004, it was observed that "whilst the burden of proof is always on the
Prosecution, it is clear that when evidence capable of proving the case against the accused and of
disproving his defence is adduced by the prosecution, there is a kind of tactical burden which is borne by
the accused in the sense that if he does not adduce evidence in rebuttal he may well find the case proved
against him: in other words, the evidential burden shifts to the accused";
58
iii) in the case of Mooniaruch (supra), it was observed that "there is no duty on the Prosecution to show
that the appellant could not have been at the places where he alleged he was. It is sufficient for the
Prosecution to establish that the appellant was at the scene of the crime at the material time".
Sub-topic: Corroboration evidence required as a matter of law:
In such instances, the Courts have no right to act upon the evidence of a single witness however truthful
or credible that witness may be. His evidence must obligatory be corroborated by some other evidence.
A) Offence of speeding- Section 124(4)(b) of the Road Traffic Act:
1) An offender shall not be liable to be convicted solely on the evidence of one witness, that in the opinion
of that witness, the offender was driving the vehicle at any particular speed.
This evidence is unreliable because of the likelihood of error in relating an impression of the speed of a
vehicle to a precise speed limit.
The evidence of the reading of a speedometer or a measuring device may be corroborative of opinion
evidence of the observation of the witness.
It is relevant to cite the authority of Eddo v R 1989 where it was held that:
i) A person may not be convicted for speeding on the evidence of one witness in whose opinion the person
was exceeding the speed limit;
ii) such a person may be convicted on the evidence of opinion of a witness but that evidence should be
corroborated;
iii) corroboration may be found in the readings of speedometers or chronographs- vide: Penny v Nicholas
1950 or any other suitable speeding device such as radar speed meters, hand held radar guns or vascar;
59
iv) corroboration may also be found in factual evidence like skid marks or damage sustained by a vehiclevide: Crossland v DPP 1988.
In the case of Nicolas v Penny 1950, it was held that 'Magistrates could convict on the evidence of a police
officer who had checked the vehicle's speed from the speedometer of his own case which was driven at
an even distance behind the accused's car.'
B) Offence of procuring or enticing prostitute- Section 253(3) of the Criminal Code
Section 253(3) of our Criminal Code provides that no person shall be convicted of the offences of
procuring, enticing and exploiting prostitute upon the evidence of a single witness. That witness must be
corroborated in some material particular by evidence implicating the accused.
Note: For the evidence of persons of defective intellect or unsound mind, the judge or magistrate must
direct his mind of a special need of caution if the Court is acting on the uncorroborated evidence of a
mental patient- vide: DPP v Subrattee 2010.
60